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•     - 

THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

GIFT  OF 


Mirer.  Glauber 


ADJUDICATED  FORMS 

OF 

PLEADING  AND  PRACTICE 

WITH 

ANNOTATIONS  AND  CORRELATIVE 
STATUTES 


ADAPTED   TO   USE   GENERALLY   IN  ALL   CODE   STATES   AND   TERRI- 

TORIES,  AND  IN  PARTICULAR  TO  THE  FOLLOWING:      ALASKA, 

ARIZONA,   ARKANSAS,   CALIFORNIA,   COLORADO,    HAWAII, 

IDAHO,     IOWA,     KANSAS,     MINNESOTA,     MISSOURI, 

MONTANA,  NEBRASKA,  NEVADA,  NEW  MEXICO, 

NORTH  DAKOTA,  OKLAHOMA,  OREGON, 

SOUTH  DAKOTA,   TEXAS,   UTAH, 

WASHINGTON,  WISCONSIN 

AND  WYOMING. 


BY 

JOHN  G.  JURY 

OF  THE  SAN  FRANCISCO    BAB 


IN  TWO  VOLUMES 
VOLUME  II 


SAN   FRANCISCO 

BENDER-MOSS  COMPANY 

LAW   PUBLISHERS  AND   LAW  BOOKSELLERS 
1011 


3i"m 


\e\\ 

Copyright,  1911 
By  Bender-Moss  Compabv. 


OUTLINE  OF  TITLES  AND  CHAPTERS  IN 
VOLUME  L 

(For  analytical  table  of  contents  thereof  see  Volume  I.) 


TITLE  I. — Pleading  and  Practice  in  General. 


Chapter 

I. 

II. 

III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 
XIII. 


Introductory. 

Pleadings  on  the  part  of  the  plaintiff. 
Pleadings  on  the  part  of  the  defendant- 
Joinder  of  causes  of  action. 
Counterclaim  and  set-off. 
Cross-complaint. 
Amendments  to  pleadings. 
Material  allegations,  variance,  and  mistake. 
Supplemental  pleadings. 
Sham  and  irrelevant  pleadings. 
Definiteness    and    certainty    in    pleadings. — Election    between 

causes. 
Verification  and  subscribing  of  pleadings. 
Construction   of    pleadings. — Pleading    particular    and    formal 

facts. 


TITLE  II. — Parties  to  Actions. 

XIV.  Parties  in  interest. — Assignment  and  disclaimer. 

XV.  Executors,  trustees  of  express  trusts,  married  women,  minors, 

etc.,  as  parties. 

XVI.  Substitution,  interpleader,  and  intervention. 

XVII.  Corporations,  partnerships,  and  associations  as  parties. 

XVIII.  Fictitious  parties. 

XIX.  Misjoinder  and  non-joinder  of  parties. 

TITLE  III. — Defenses  to  Actions  in  General. 

XX.    Defenses  in   abatement. — Miscellaneous   defenses. 
XXI.    Defenses  to  actions  founded'  upon  contract. 
XXII.    Defenses  to  actions  for  wrongs. 

TITLE  IV. — Actions  Relating  to  Personal  and  Domestic  Security. 

XXIII.  False  imprisonment. 

XXIV.  Malicious  prosecution. 

XXV.    Civil  action  for  assault  and  battery. 

(iii) 


831 


iv  OUTLINE   TABLE   OF   CONTENTS.— VOL.   I. 

Chapter 

XXVI.    Libel  and  slander. 

XXVII.    Abduction,  seduction,  and  alienation  of  affections. 
XXVIII.    Actions    relating    to    unlawful    discriminations    in    places    of 
public  accommodation  or  amusement. 

TITLE  V. — Actions  by  and  against  Persons  under  Legal  Disability. 

XXIX.    Actions  by  or  against  minors. 
XXX.    Insane  and  incompetent  persons. 

TITLE  VI. — Actions  Incident  to  or  Concerning  Domestic  Relations. 

XXXI.  Annulment  of  marriage. 

XXXII.  Divorce. 

XXXIII.  Maintenance  and  support  of  wife. 

XXXIV.  Actions  relating  to  property  of  busband  and  wife. — Curtesy 

and  dower. 
XXXV.    Custody  and  support  of  minor  children. 
XXXVI.    Adoption. 
XXXVII.    Actions  relating  to  master  and  apprentice. 

TITLE  VII. — Actions  by  and  against  Private  Corporations. 

XXXVIII.    Actions  relating  to  the  management  and  internal  affairs  of 
corporations. 
XXXIX.     Actions  upon  stockholders'  liability. 

XL.     Actions  against  foreign  corporations  and  their  stockholders. 
XLI.    Actions  to  restore  lost  or  destroyed  corporation  records. 

TITLE  VIII. — Actions  by  and  against  the  State,  Municipal  Corpora- 
tions and  Public  Officers. 

XLII.    Actions  instituted  by  attorney-general,  or  by  or  against  the 

state. 
XLIII.    Actions  by  and  against  counties  and  county  officers. 
XLIV.    Actions  by  and  against  cities  as  municipalities,   city  boards 

and  officers. 
XLV.    Actions  by  and  against  sheriffs  and  constables. 
XLVI.    Actions  relating  to  taxes  and  revenue. 

TITLE  IX. — Actions  Specially  Designated  in  the  Code. 

XLVTI.  Foreclosure  of  mortgages  on  real  property. 

XLVIII.  Redemption  of  mortgages. 

XLIX.  Nuisance. 

L.  Waste. 

LI.  Trespass. 

LII.  Actions  to  Quiet  Title. 


OUTLINE  TABLE  OF  CONTENTS.— VOL.  I. 


Chapter 

Lin. 
liv. 

LV. 

LVI. 

LVII. 

LVIII. 


Actions  to  determine  adverse  claims  to  real  property. 

Actions  respecting  mining  claims. 

Partition  of  real  property. 

Usurpation  of  an  office  or  a  franchise. — Quo  warranto. 

Actions  against  steamers,  vessels,  and  boats. 

Contribution  between  joint  debtors. 


TITLE  X. — Special  Proceedings  of  a  Civil  Nature. 


LIX. 

LX. 

LXI. 

LXII. 

LXIII. 

LXIV. 

LXV. 

LXVI. 

LXVII. 

LXVIII. 

LXIX. 

LXX. 

LXXI. 

LXXII. 

LXXIII. 

LXXIV. 

TITLE  XI.- 


LXXY. 

LXX  VI. 

LXXVII. 

LXXVIII. 

LXXIX. 

LXXX. 

LXXXI. 

LXXXTI. 

WCKXIII. 


Review  or  certiorari. 

Mandamus. 

Prohibition. 

Election  contests. 

Submitting  controversy  without  action. — Agreed  case. 

Forcible  entry  and  unlawful  detainer. 

Foreclosure  of  mechanics'  liens. 

Voluntary  dissolution  of  corporations. 

Eminent  domain. 

Escheated  estates. 

Change  of  name. 

Arbitration  and  award. 

Actions  by  and  against  executors  or  administrators. 

Contests  in  probate. 

Actions  to  determine  heirship  and  interest  in  estate. 

Miscellaneous  special  proceedings. — Guardians. — Sole  traders. 

-Actions  relating  to  Real  Property  and  Rights  Incident 
Thereto. 

Actions  relating  to  covenants,  title,  and  possession. 

Builders'  contracts. 

Vendor  and  vendee. 

Landlord  and  tenant. 

Ejectment. 

Trusts  and  trustees. 

Appraisal  of  homesteads. 

Water-rights  and  riparian  owr.eri. 

Irrigation  and  reclamation. 


ANALYTICAL  TABLE   OF  CONTENTS 
VOLUME  II 

TITLE  XII. — Actions  Founded  upon  Contract. 

CHAPTER  LXXXIV.— Sale  and  Warranty. 

Prge 

§  309.  Code  provisions  11:40 

§  310.  Complaints  [or  petitions]  1240 

Form  No.  607.  For  breach  of  warranty  of  title 1240 

Form  No.  608.  On  warranty  of  note 1241 

Form  No.  609.  For  breach  of  warranty  as  to  judgment 1241 

Form  No.  610.  For  breach  of  warranty  on  sale  by  sample....  1242 

Form  No.  611.  For  breach  of  warranty  of  quality  of  fruit-trees  1242 
Form  No.  612.  Against  a  foreign  corporation,  to  rescind  a  con- 
tract for  breach  of  warranty  of  quality,  and 

to  recover  part  of  purchase  price  paid 1244 

Form  No.  613.  For  breach  of  warranty  on  sale  of  work  animals  1245 

Form  No.  614.  For  breach  of  warranty  on  sale  of  stallion....  1246 
Form  No.  615.  For  breach  of  warranty  of  fitness  for  designated 

purpose 1246 

§  311.  Answers    1247 

Form  No.  616.  Defense  of  denial  of  warranty 1247 

Form  No.  617.  Denial  of  breach  of  warranty 1247 

Form  No.  618.  Counterclaim  on  breach  of  warranty 1247 

§  312.  Annotations    1248 

CHAPTER  LXXXV. — Breach  of  Contracts  of  Sale  and  Purchase,  and 
of  Miscellaneous  Contracts. 

§  313.  Code  provisions  1249 

§  314.  Complaints   [or  petitions]    1251 

Form  No.  619.  For  breach  of  contract  of  sale  and  to  recover 

for  goods  sold 1251 

Form  No.  620.  For  breach  of  contract  to  furnish  engine  and 

engineer  at  the  opening  of  threshing  season     1252 
Form  No.  621.  For  breach  of  contract  in  furnishing  irrigating 

plant   1253 

Form  No.  622.  Upon  contract  to  purchase  stock  in  default  of 

corporation  to  pay  dividends 1254 

Form  No.  623.  For  breach  of  an  option  contract  to  repurchase 

stock  1255 

Form  No.  624.  For  breach  of  contract  for  purchase  of  fruit 1256 

(vii) 


viii  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

Page 
Form  No.  625.  Averments  as  to  damages  for  breach  of  con- 
tract to  purchase  oil 1258 

§  315.  Answers  1259 

Form  No.  626.  Defense  of  non-compliance  with  contract 1259 

Form  No.  627.  Defense  of  coverture  of  the  defendant 1259 

Form  No.  628.  Defense  of  breach  of  contract  to  feed  and  care 

for  animals,  and  cross-complaint  for  damages  1259 

§  316.  Judgment  [or  decree]   1261 

Form  No.  629.  For  plaintiff. — Damages  for  breach  of  contract 

to  purchase 1261 

§  317.  Annotations    1261 

CHAPTER  LXXXVI.— Work  and  Services. 

i  318.  Complaints  [or  petitions]    1264 

Form  No.  630.  For  work  and  services.    (Common  form.) 1264 

Form  No.  631.  To  recover  balance  upon  an  executed  contract 

for  services 1265 

Form  No.  632.  By  employee  against  employer,  for  failure  to 

fulfil  contract  of  employment 1265 

Form  No.  633.  By   employer   against   employee,   for   damages 

caused  by  inefficient  services 1266 

Form  No.  634.  Against  employee,  for  refusal  to  serve 1266 

Form  No.  635.  By  auctioneer,  upon  an  account  for  work  and 

services    1267 

Form  No.  636.  For  work,  etc.,  comprising  different  items 1267 

Form  No.  637.  For  services  rendered  by  husband  and  wife 1268 

Form  No.  638.  By  machinist,  for  services  and  materials  fur- 
nished       1269 

Form  No.  639.  By  physician,  for  services   1269 

Form  No.  640.  On  builders'  contract,  with  claim  for  extra  work 

for  alterations   1270 

Form  No.  641.  By  attorneys,  for  services 1270 

Form  No.  642.  By  surviving  partner  of  a  law  firm,  to  recover 
conditional  and  reasonable  fee  for  legal  serv- 
ices.    (Pleading,  also,  stated  account.) 1271 

Form  No.  643.  By  parent,  for  services  of  minor  child 1273 

Form  No.  644.  Upon  individual  and  assigned  claims  for  serv- 
ices        1273 

§  319.  Answers 1274 

Form  No.  645.  Defense  where  damages  exceed  alleged  value 
of  services. — Action  upon  assigned  claims  for 

reasonable  services  of  a  physician 1274 

Form  No.  646.  Defense  of  performance 1275 

Form  No.  647.  Denial  of  offer  to  serve 1276 

Form  No.  648.  Defense  of  special  denial,  and  accounting  and 

payment 1276 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.         u 

CHAPTER   LXXXVI I.— Actions  for  Debt.— Goods  Sold  and   Delivered. 

Pag« 

|  320.  Complaints  [or  petitions] • 1277 

Form  No.  649.  Action  for  debt.     (Common  form.) 1277 

Form  No.  650.  By  partnership,  for  goods  sold  and  delivered..  1278 

Form  No.  651.  For  the  reasonable  value  of  goods  sold 1279 

Form  No.  652.  To  recover  for  goods  delivered  to  third  person 

at  defendant's  request 1279 

Form  No.  653.  To  recover  where  credit  was  given 1279 

Form  No.  654.  For  balance  on  goods  sold  and  delivered  at  an 

agreed  price  1280 

Form  No.  655.  To  recover  interest  on  a  balance  due  on  an  ac- 
count stated   1280 

Form  No.  656.  Against    foreign    corporation,    on    an    account 

stated  for  debt 1281 

Form  No.  657.  Against  husband  and  wife,  for  goods  sold  to 

wife  for  her  separate  estate 1281 

Form  No.  658.  By  an  assignee,  for  the  price  of  stock  and  fix- 
tures of  a  store,  payable  in  instalments 1282 

Form  No.  659.  On  an  assigned  debt  due  to  a  partnership 1282 

Form  No.  660.  For  goods  sold  and  delivered  to  a  partnership, 

and  to  partner  as  individual 1283 

jlai.  Answers  1284 

Form  No.  661.  Denial  of  plaintiff's  title 1284 

Form  No.  662.  Defense  that  credit  is  unexpired 1284 

Form  No.  663.  Defense  reducing  value  [or  amount  promised], 

and  pleading  payment  [or  offer  to  pay] 1284 

Form  No.  664.  Averments  in  defense  as  to  agreement  to  take 

note  in  part  payment 1285 

Form  No.  665.  Defenses — (1)  general  denial,  (2)  former  judg- 
ment    1285 

Form  No.  666.  Defenses — (1)  denial  of  account  stated,  (2)  de- 
nial of  indebtedness 1286 

S  322.  Annotations    1286 

CHAPTER  LXXXVIII.— Money  Had  and  Received.— Involuntary  Trusts. 

8  323.  Complaints   [or  petitions]    1289 

Form  No.  667.  For  money  had  and  received.    (Common  form.)  1289 
Form  No.  668.  On  assigned  claim  for  money  had  and  received. 

etc.— Statement  of  cause  in  separate  counts  1289 

Form  No.  669.  For  recovery  back  of  a  wager 1290 

Form  No.  670.  To  recover  specific  moneys  lost  by  a  servant  in 

gambling 1290 

5  324.  Answers  1292 

Form  No.  671.  Denial  of  receipt  of  moneys 1292 

Form  No.  672.  Defense  of  accounting  and  payment 1292 

•5  325.  Annotations 129? 

Jury's  PI.- -79b. 


x  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

CHAPTER  LXXXIX.— Money  Lent. 

Page 

§  326.  Complaints  [or  petitions]  1294 

Form  No.  673.  For  money  lent.     (Common  form.) 1294 

Form  No.  674.  By  assignee  of  lender  against  borrower 1294 

§  327.  Answers 1295 

Form  No.  675.  Denial  of  loan 1295 

Form  No.  676.  Defense  that  money  was  paid  in  settlement  of 

an  antecedent  debt 1295 

CHAPTER  XC. — Money  Paid  for  the  Benefit  of  Another,  and  on  Implied 

Contracts. 

§  328.  Complaints   [or  petitions]    1296 

Form  No.  677.  Money  paid  to  third  person  upon  defendant's 

promise  to  repay 1296 

Form  No.  678.  To  recover  money  overpaid  by  mistake 1296 

Form  No.  679.  By  bank,  to  recover  attorney's  fees  and  ex- 
penses incurred  against  a  party  who  fraudu- 
lently obtained  a  draft 1297 

Form  No.  680.  By  landlord  against  tenant,  for  repayment  of 

tax 1298 

Form  No.  681.  By  endorser  who  has  paid  part  of  note 1298 

Form  No.  682.  By  maker  of  accommodation  note  who  has  paid 

the  same  129& 

Form  No.  683.  For  repayment  of  money  after  judgment  re- 
versed       1299 

CHAPTER  XCI. — Hiring  of  Personal  Property. 

§  329.  Complaints  [or  petitions]  1300 

Form  No.  684.  For  hire  of  personal  property 1300 

Form  No.  685.  For  hire  of  furniture,  with  damages  for  ill-usage  1300 

Form  No.  686.  For  hire  of  piano-forte 1301 

CHAPTER  XCII. — Hotelkeepers  or  Innkeepers. 

§  330.  Code  provisions 1301 

§  331.  Complaints  [or  petitions]    1308 

Form  No.  687.  Against  an  innkeeper,  for  loss  of  baggage 1308 

Form  No.  688.  To  recover  for  loss  of  pocket-book  containing 

money 1309 

Form  No.  689.  Against  innkeeper,  for  refusal  to  receive  and 

lodge  guest  1309 

Form  No.  690.  By  innkeeper,  for  board  and  lodging 1310 

§  332.  Answers  1310 

Form  No.  691.  Defense  that  plaintiff  was  not  a  guest 1310 

Form  No.  692.  Defense  where  moneys  [or  other  valuables] 
lost  were  not  deposited  with  the  innkeeper 

for  safe-keeping 1310- 


ANALYTICAL  TABLE  OP  CONTENTS.— VOL.  II.  xi 

CHAPTER  XCIII.— Bailment  or  Deposit. 

Pag» 

S  333.  Code  provisions 1311 

§  334.  Complaint  [or  petition]   1318 

Form  No.  693.  For  damages  against  a  bailee  of  goods 1318 

S  335.  Answers 1318 

Form  No.  694.  Denial  of  bailment  1318 

Form  No.  695.  Defense  that  thing  deposited  is  held  as  a  pledge  1319 

CHAPTER  XCIV.— Partnership  and  Accounting. 

§  336.  Complaints  [or  petitions]    1320 

Form  No.  696.  For  the  dissolution  of  a  partnership,  and  for  an 

accounting  and  receivership 1320 

Form  No.  697.  For  an  accounting  after  dissolution 1321 

Form  No.  698.  To  restrain  late  partner  from  continuing  busi- 
ness    1322 

Form  No.  699.  By  one  partner  against  another,  for  breach  of 

agreement  to  pay  firm  debts 1322 

§  337.  Annotations   1323 

CHAPTER  XCV.— Agency. 

§  338.  Complaints  [or  petitions]  1325 

Form  No.  700.  By  a  foreign  corporation  against  its  agent  and 

manager,  for  an  accounting 1325 

Form  No.  701.  By  real  estate  agent,  for  commission 1328 

Form  No.  702.  By  real  estate  agent,  for  commissions  for  sale 

executed 1329 

Form  No.  703.  Upon  special  contract  to  protect  agent  in  his 

right  to  commissions 1329 

§  339.  Answers 1331 

Form  No.  704.  Defense  denying  agency 1331 

Form  No.  705.  Defense  based  upon  special  contract  as  to  com- 
missions    1331 

Form  No.  706.  Defense    including    counterclaim    for    damages 
for  disobeying  principal's  orders  in  regard  to 

stock  transactions 1331 

§  340.  Annotations 1333 

CHAPTER  XCVI.— Insurance. 

S  341.  Complaints  [or  petitions]  1336 

Form  No.  707.  Upon  fire  insurance  policy.     (Common  form.) . .  1336 

Form  No.  708.  By  mortgagee  as  assignee  of  the  policy 1337 

Form  No.  709.  Upon  fire  insurance  policy. — Total  loss 1337 

Form  No.  710.  Upon  fire  insurance  policy. — With  averments  as 

to  waiver  of  written  statement 1339 

Form  No.  711.  On  agreement  to  insure  and  give  policy 1342 


Xll 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 


Pag« 

Form  No.  712.  By  executor,  on  life  policy 1343 

Form  No.  713.  By  assignee,  in  trust  for  wife  of  insured 1344 

Form  No.  714.  By  wife,  partner,  or  creditor  of  insured 1344 

Form  No.  715.  Interpleader  to  determine  beneficial  interest  in 

life  insurance  policy 1345 

Form  No.  716.  On  a  valued  marine  policy 1347 

Form  No.  717.  On  open  marine  policy 1348 

Form  No.  718.  On  vessel  lost  by  perils  of  tbe  sea 1349 

Form  No.  719.  For    partial     loss     and     contribution. — Marine 

policy   1350 

Form  No.  720.  Allegation  of  renewal 1350 

Form  No.  721.  Averment  where  plaintiff  purchased  the  prop- 
erty after  insurance 1351 

Form  No.  722.  Averment  of  waiver  of  condition 1351 

S  342.  Answers  135i 

Form  No.  723.  Denial  of  policy  1351 

Form  No.  724.  Denial  of  plaintiff's  interest 1351 

Form  No.  725.  Defense  based  upon  denial  of  loss 1351 

Form  No.  726.  Defense  of  misrepresentation  and  concealment  1352 
Form  No.  727.  Defense  setting  forth  "fallen  building"  clause  in 

action  upon  fire  insurance  policy 1352 

Form  No.  728.  Defense   of  overinsurance   without  consent  of 

insurer  1352 

Form  No.  729.  Defenses — (1)  denial  of  furnishing  proofs  of 
death,  (2)  denial  of  indebtedness,  (3)  denial 
of  waiver  of  conditions. — In  general  defense 
of   forfeiture   of  policy   for  non-payment  of 

premium 1353 

Form  No.  730.  Transfer  without  insurer's  consent 1354 

Form  No.  731.  Defense  that  a  fraudulent  account  of  loss  was 

given 1354 

Form  No.  732.  Defense  that  risk  was  extra-hazardous 1354 

Form  No.  733.  Denial  of  loss  from  peril  or  risk  insured  against  1355 

Form  No.  734.  Defense  that  vessel  was  unseaworthy 1355 

S  343.  Annotations    1356 

CHAPTER  XCVII. — Negotiable  Instruments. 

S  344.  Complaints  [or  petitions]    1360 

Form  No.  735.  By  first  endorsee  against  maker 1360 

Form  No.  736.  By  subsequent  endorsee  against  maker 1361 

Form  No.  737.  By  first  endorsee  against  first  endorser 1361 

Form  No.  738.  By    subsequent    endorsee    against    immediate 

endorser 1361 

Form  No.  739.  By  subsequent  endorsee  against  first  endorser  1361 

Form  No.  740.  By  subsequent  endorsee  against  all  prior  parties  1362 

Form  No.  741.  On  note  wrongly  dated 1362 


ANALYTICAL  TABLE  OF  CONTENTS— VOL.  II.  xiii 

Page 

Form  No.  742.  On  sight  note  I362 

Form  No.  743.  By  domestic  corporation,  payee,  against  foreign 

corporation  1363 

Form  No.  744.  By  payee  as  receiver  against  partners 1363 

Form  No.  745.  By  partners  on  note  payable  to  firm 1363 

Form  No.  746.  By  payee  against  surviving  partner 1364 

Form  No.  747.  Averments  as  to  partnership  promissory  note 

endorsed  to  plaintiffs 1364 

Form  No.  748.  By  partners  on  protested  promissory  note 1365 

Form  No.  749.  On  note  signed  by  agent 1366 

Form  No.  750.  Upon  a  promissory  note  executed  by  an  agent 

of  a  partnership 1366 

Form  No.  751.  Upon  a  joint  and  several  promissory  note 1367 

Form  No.  752.  On  note  executed  in  another  state 1367 

Form  No.  753.  By  payee  of  bill  against  acceptor  for  non-pay- 
ment     1368 

Form  No.  754.  By    payee   of   bill    against   drawer   after   non- 
acceptance  1368 

Form  No.  755.  For  non-payment  of  bill  payable  on  specific  date  1368 
Form  No.  756.  By  assignee  of  bill   payable  out  of  particular 

fund 1369 

Form  No.  757.  By  payee  against  drawee  and  acceptor 1369 

Form  No.  758.  By  payee,  on  bill  accepted  for  honor 1370 

Form  No.  759.  By  first  endorsee  of  bill  against  acceptor 1370 

Form  No.  760.  By  endorsee  of  bill  against  first  endorser 1371 

Form  No.  761.  By   remote   endorsee   against   drawer   and   en- 
dorser for  non-acceptance 1371 

Form  No.  762.  By    subsequent   endorsee    of    bill    against    first 

endorser 1372 

Form  No.  763.  By  subsequent  endorsee  of  bill  against  inter- 
mediate endorser   1372 

Form  No.  764.  By    subsequent   endorsee   of   bill    against   last 

endorser 1372 

Form  No.  765.  By  first  endorsee  of  bill  against  all  prior  parties  1373 
Form  No.  766.  By     subsequent     endorsee     against     all     prior 

parties 1373 

Form  No.  767.  Against  a  bank  upon  acceptance,  followed  by 

refusal  to  pay  check 1374 

Form  No.  768.  Upon  an  accepted  and  assigned  draft 1374 

Form  No.  769.  By  payee  of  check  against  drawer 1375 

Form  No.  770.  By  endorsee  or  bearer  of  check  against  drawer  1375 
Form  No.  771.  By  endorsee  or  bearer  of  check  against  drawer 

and  endorser 1376 

Form  No.  772.  Omission  to  give  notice  excused 1376 


XIV 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 


Page 

fi  346.  Answers 1376 

Form  No.  773.  Defense  of  payment  before  endorsement 1376 

Form  No.  774.  Defense  of  no  consideration 1377 

Form  No.  775.  Defenses  of  want  of  consideration  and  fraud. ..     1377 
Form  No.  776.  Defense  of  no  consideration  based  upon  false 

warranty  of  goods  sold 1378 

Form  No.  777.  Defense  that  note  was  executed  for  a  pre-exist- 
ing indebtedness,  and  endorsed  by  an  officer 

of  a  corporation  without  consideration 1379 

Form  No.  778.  Defense  of  fraud  in  procuring  note 1379 

Form  No.  779.  Defense  of  mistake  in  amount  of  note 1380 

Form  No.  780.  Defense  that  acceptance  was  for  accommoda- 
tion       1380 

Form  No.  781.  Defense  that  defendant  was  a  married  woman, 
and  signed  the  note  as  surety  only  for  her 

husband  1380 

Form  No.  782.  Defense  of  unauthorized  and  fraudulent  accept- 
ance       1381 

Form  No.  783.  Defense  of  alteration  of  instrument.  (In  gen- 
eral.)        1381 

Form  No.  784.  Defense  based  upon  material  alteration  in  note 

by  changing  the  name  of  the  payor 1381 

Form  No.  785.  Defense  that  note  was  given  for  losses  sus- 
tained by  sale  of  "options  on  'change,"  a  ficti- 
tious and  gambling  transaction 1382 

Form  No.  786.  Defense  of  usury  in  making  note 1382 

Form  No.  787.  Defenses— (1)  denials,  (2)  dishonoring  of 
drafts  due  to  acts  of  plaintiff,  (3)  that  value 
of  property  was  offset  by  value  of  drafts,  (4) 
payment,  (5)  wrongful  diversion  of  surplus 
money  which  should  have  been  applied  to 
payment,  (6)  non-observance  of  instructions 
and  failure  to  enforce  lien,  (7)  failure  to  de- 
liver agreed  security. — Action  upon  guaranty 

of  drafts  with  bills  of  lading  attached J3?3 

Form  No.  788.  Action  upon   guaranty  of  drafts   with  bills  of 

lading  attached   1390 

Form  No.  789.  Denial  of  endorsement 1393 

Form  No.  790.  Denial  of  acceptance 1393 

Form  No.  791.  Denial  of  acceptance,  presentment,  and  protest     1393 

Form  No.  792.  Denial  of  presentment 1394 

Form  No.  793.  Denying  excuse  for  non-presentment 1394 

Form  No.  794.  Denial  of  notice  1394 

Form  No.  795.  Counterclaim  in  action  upon  promissory  note..     1394 
|  346.   Annotations 1396 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 


XV 


CHAPTER  XCVIII.— Guaranty  and  Suretyship. 

Pag* 

J  347.  Complaints  [or  petitions]  1399 

Form  No.  796.  By  surety,  for  money  paid  on  undertaking  on 

appeal 1399 

Form  No.  797.  By  surety,  on  lease,  against  principal 1400 

Form  No.  798.  On  guaranty  of  antecedent  debt 1401 

Form  No.  799.  On  agreement  to  answer  for  price  of  goods  sold 

to  a  third  person 1401 

Form  No.  800.  Against  principal  and  sureties,  on  contract  for 

work  1402 

Form  No.  801.  Against  guarantor  of  mortgage,  to  recover  fore- 
closure deficiency  1402 

Form  No.  802.  By  surety  against  principal,  for  indemnity 1403 

Form  No.  803.  Against  surety,  for  payment  of  rent 1404 

Form  No.  804.  Upon  original  obligation  of  a  promisor,  to  repay 
moneys  advanced  to  another  upon  the  order 
of  the  promisor,  the  order  itself  being  lost. .     1404 

Form  No.  805.  Against  guarantors  of  a  promissory  note 1406 

8  348.  Answers  1408 

Form  No.  806.  Defense  that  guarantor  had  no  notice  of  non- 
payment of  note   until   after   insolvency   of 

maker     1408 

Form  No.  807.  Defense  that  sureties  signed  notes  without  con- 
sideration, and  at  the  instance  of  the  plaintiff 
only 1409 

CHAPTER  XCIX.— Chattel   Mortgages  and  Pledges. 

§  349.  Code  provisions  1410 

§  350.  Complaints   [or  petitions]    1410 

Form  No.  808.  For  foreclosure  of  chattel  mortgage.    (Common 

form.)    1410 

Form  No.  809.  To  foreclose  chattel  mortgage  for  default  in 
making  payments  of  instalments,  and  pray- 
ing for  appointment  of  receiver 1411 

Form  No.  810.  For  foreclosure  of  pledge  1413 

Form  No.  811.  To  recover  for  loss  of  pledge 1413 

Form  No.  812.  To  recover  for  injury  to  pledge 1414 

Form  No.  813.  By    pledgeor    of    note    as    collateral,    against 

pledgee 1414 

Form  No.  814.  For  an  accounting  concerning  pledged  goods, 
and  for  an  injunction  restraining  the  sale  of 

goods  where  the  amount  due  is  in  dispute 1415 

S  351.  Judgment  [or  decree]   1415 

Form  No.  815.  On  foreclosure  of  chattel  mortgage  and  order 

of  sale,  and  appointing  commissioner 1415 

5  352.  Annotations 1417 


xvi  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

CHAPTER  C. — Bonds  and  Undertakings,  and  Actions  Thereon. 

Page 

§  353.  Form  of  bonds,  endorsements,  etc 1418 

Form  No.  816.  Official  bond.     (Common  form.) 1418 

Form  No.  817.  Official  bond  of  city  clerk 1419 

Form  No.  818.  Approval  of  bond,  endorsed  thereon 1420 

Form  No.  819.  Oath  of  officer  on  qualifying 1420 

Form  No.  820.  Exception  to  sureties  on  [bail]  bond 1420 

Form  No.  821.  Notice    of   justification   of   sureties    on    [bail] 

bond   1421 

§  354.  Forms  of  procedure  where  leave  to  sue  an  officer  of  the  court 

must  first  be  obtained 1421 

Form  No.  822    Petition  for  permission  to  bring  an  action  upon 

the  bond  of  an  executor  [or  administrator] . .  1421 
Form  No.  823.  Order  granting  leave  to  sue  on  the  bond  of  an 

executor  [or  administrator] 1422 

§  355.  Complaints  [or  petitions] 1422 

Form  No.  824.  On    bond    for    the    unconditional    payment    of 

money.    (Common  form.) 1422 

Form  No.  825.  By  surviving  obligee  on  joint  bond 1423 

Form  No.  826.  On  bond  other  than  for  payment  of  money....  1423 

Form  No.  827.  On  bond  for  the  fidelity  of  an  employee 1423 

Form  No.  828.  Against  surety  company  on  appeal  bond 1424 

Form  No.  829.  Undertaking  entered  into  by  surety  company  on 
appeal  from  justice  court  from  judgment 
directing  payment  of  money.    (Exhibit  A  to 

form  No.  828) 1425 

Form  No.  830.  On  appeal  bond  given  in  forcible  entry  and  de- 
tainer proceedings 1426 

Form  No.  831:  On  bond  given  in  replevin 1427 

Form  No.  832.  On  supersedeas  bond  1429 

S  356.  Answer 1430 

Form  No.  833.  Defense  of  failure  of  consideration 1430 

§  357.  Annotations 1430 

CHAPTER  CI. — Subscription  Agreements. 

§  358.  Complaints  [or  petitions]   1432 

Form  No.  834.  On  a  subscription  agreement.  (In  general) ....  1432 
Form  No.  835.  On  subscription  agreement  for  the  building  of  a 

church 1433 

{  359.  Answers  1434 

Form  No.  836.  Defense  of  denial  of  execution  of  subscription 

agreement  1434 

Form  No.  837.  Defense  of  fraud  in  obtaining  agreement 1434 

Form  No.  838.  Defense  of  non-performance  of  conditions  upon 

which  the  subscription  was  given 1434 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  IL  xvii 

CHAPTER  CM. — Charter-Party  and  Maritime  Agreements. 

Page 

{  360.  Complaints  [or  petitions]  1435 

Form  No.  839.  By  ship-owner  against  charterer,  for  freight. . . .  1435 
Form  No.  840.  By  ship-owner,  for  damages  and  demurrage  for 

failure  to  load  goods  on  ship 1436 

Form  No.  841.  For  damages  for  abandoning  voyage 1436 


CHAPTER  CI II. — Breach  of  Promise  of  Marriage. 

§  361.  Complaints  [or  petitions]    1437 

Form  No.  842.  For  breach  of  promise  of  marriage 1437 

Form  No.  843.  For  marriage  with  another 1438 

§  362.  Answers 1438 

Form  No.  844.  Denial  of  promise  1438 

Form  No.  845.  Denial  of  breach 1438 

Form  No.  846.  Defense  alleging  bad  character  of  plaintiff 1438 


CHAPTER  CIV. — Actions  on  Judgments. 

§  363.  Leave  to  sue  upon  a  judgment 1439 

Form  No.  847.  Notice  of  motion  for  leave  to  sue  upon  judg- 
ment    1439 

Form  No.  848.  Affidavit  accompanying  application  for  leave  to 

sue  upon  a  judgment 1440 

Form  No.  849.  Order  granting  leave  to  sue  upon  a  judgment. .  1441 

§  364.  Complaints  [or  petitions]   1441 

Form  No.  850.  On  Judgment  wholly  unpaid.     (Common  form.)  1441 

Form  No.  851.  On  judgment  partially  satisfied 1442 

Form  No.  852.  On   judgment   for   deficiency   after   foreclosure 

sale 1442 

Form  No.  853.  On  judgment  assigned  1443 

Form  No.  854.  On  foreign  judgment  of  court  of  general  juris- 
diction    1444 

Form  No.  855.  On  foreign  judgment  of  inferior  tribunal 1444 

§  365.  Answers 1445 

Form  No.  856.  Defense  of  payment 1445 

Form  No.  857.  Defense  based  upon  vacation  of  judgment 1445 

Form  No.  858.  Defense  that  judgment  was  obtained  by  fraud. .  1445 

Form  No.  859.  Defense  of  invalidity  of  foreign  judgment 1446 

Form  No.  860.  Defense  of  invalidity  of  judgment  against  non- 
resident     1446 

{  366.  Annotations 1447 


xviii  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

TITLE  XIII.— Actions  for  Negligence. 

CHAPTER  CV. — Employers'  Liability  Cases,  and  Actions  against  Employees. 

Page 

fi  367.  Complaints  [or  petitions]    1449 

Form  No.  861.  By  employee  against  railroad  company,  for 
damages  resulting  from  injuries  sustained  in 

operation  of  defective  machinery 1449 

Form  No.  862.  By  servant,  to  recover  damages  for  personal 
injuries  sustained  from  negligence  of  em- 
ployer in  requiring  performance  of  labor  with 

which  the  servant  was  not  familiar 1450 

Form  No.  863.  Under  employers'  liability  act 1451 

Form  No.  864.  By  employer,  for  servant's  negligence 1454 

Form  No.  865.  By  employer,  for  repayment  of  money  advanced 

for  services 1454 

S  368.  Answers 1455 

Form  No.  866.  Defense  based  upon  failure  of  plaintiff  to  give 
notice    prescribed    by    statute    as    condition 

precedent  to  action 1455 

Form  No.  867.  Denial,  and  defense  of  contributory  negligence 

and  assumed  risk  1456 

Form  No.  868.  Defenses — (1)  contributory  negligence  of  plaint- 
iff,    (2)     negligence     of     fellow-servant     of 

plaintiff 1457 

§  369.  Annotations 1458 

CHAPTER  CVI. — Negligence  of  Various  Persons  Owing  a  Contractual  Duty. 

§  370.  Complaints  [or  petitions]  1461 

Form  No.  869.  Against  attorney  for  negligent  prosecution  of 

suit 1461 

Form  No.  870.  Against  attorney,  for  negligent  defense  of  an 

action   1462 

Form  No.  871.  Against  an  agent,  for  carelessly  selling  to  an 

insolvent 1463 

Form  No.  872.  Against  an  agent,  for  negligent  delay  in  the 

sale  of  goods 1463 

Form  No.  873.  Against  negligent  bailee  1463 

Form  No.  874.  Against  a  physician,  for  malpractice. 1464 

Form  No.  875.  Against  a  surgeon,  for  malpractice 1464 

Form  No.  876.  For  negligence  of  a  dentist 1465 

Form  No.  877.  For  negligence  of  grocer  in  selling  a  dangerous 

explosive    1466 

Form  No.  878.  By    servant,    for    damages    caused    by    vicious 

animal 1468 

Form  No.  879.  To  recover  damages  against  abstracters  of  title 

for  negligence  in  reporting  upon  title  to  real 

property 1469 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.  XIX 

CHAPTER  CVII. — Negligence  of  Carriers  of  Property  or  Messages. 

Page 

5  371.  Complaints  [or  petitions]  1472 

Form  No.  880.  Against  common  carrier,  for  negligent  loss  of 

goods 1472 

Form  No.  881.  To  recover  for  goods  injured  in  transit 1472 

Form  No.  882.  For  loss  of  baggage 1473 

Form  No.  883.  For  failure  to  collect  on  delivery 1473 

Form  No.  884.  For  failure  to  deliver  at  time  agreed 1474 

Form  No.  885.  Against  marine  carrier,  for  disregarding  notice 

to  keep  goods  dry 1474 

Form  No.  886.  For  negligence  in  loading  cargo 1475 

Form  No.  887.  For  loss  in  unloading 1475 

Form  No.  888.  For  breach  of  contract  by  corporation  to  carry 

message  1476 

S  372.  Answers 1476 

Form  No.  889.  Denial  of  contract  of  carriage 1476 

Form  No.  890.  Denial  that  goods  were  received 1476 

Form  No.  891.  Denial  of  loss  and  negligence 1476 

Form  No.  892.  Averment  that  the  contract  was  special 1477 

Form  No.  893.  Defense  that  defendant  is  not  a  common  carrier  1477 
Form  No.  894.  Defense  that  goods  were  negligently  packed  by 

the  plaintiff 1477 

Form  No.  895.  Defense  that  goods  were  lost  by  unavoidable 

accident,  etc 1477 

Form  No.  896.  Defense  setting  forth  stipulation  as  to  value  of 
property  admitted  to  have  been  lost  through 

negligence 1478 

Form  No.  897.  Counterclaim  for  negligence  in  action  by  car- 
rier to  recover  freight  money 1478 

§  373.  Annotations 1479 

CHAPTER   CVIII. — Negligence   of  Carriers. — Actions  for   Injuries  to 
Passengers  not  Resulting  in   Death. 

§  374.  Code  provisions  1480 

§  375.  Complaints  [or  petitions]  1484 

Form  No.  898.  Against  street  railway  corporation  for  damages 
for  personal  injuries  sustained  by  passenger 
through  negligent  and  careless  starting  of  car 
Form  No.  899.  Against  common  carrier  for  personal  injuries 
resulting  from  wrongful  ejection  of  passen- 
ger from  street-car 1486 

Form  No.  900.  For  damages  for  forcible  ejection  from  train. . .     1487 
Form  No.  901.  For  personal  injuries  suffered  by  a  wife. — Join- 
ing of  husband  in  the  action 1489 

Form  No.  902.  By  passenger,  for  damages  caused  by  negligent 

operation  of  an  elevator 1491 

5  376.  Annotations 1492 


XX        ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

CHAPTER  CIX.— Death  by  Wrongful  Act. 

Pag© 

S  377.  Complaints  [or  petitions]  1494 

Form  No.  903.  Against  common  carrier  by  representative  of  a 
decedent,  for  damages  for  wrongful  death. — 
Decedent  a  passenger  on  defendant's  train. .     1494 
Form  No.  904.  By  representative,  for  wrongful  death  caused  by 

collision 1495 

Form  No.  905.  By  heir  at  law  against  street  railway  corpora- 
tion, for  damages  resulting  from  the  death 
of  a  minor  child  caused  by  negligent  opera- 
tion of  street-cars  1496 

Form  No.  906.  By  husband  and  minor  children,  to  recover 
damages   for  death  of  wife  and  mother  of 

said  minors 1498 

$  378.  Replication 1500 

Form  No.  907.  In  action  by  administrator  for  wrongful  death 

of  passenger  on  overloaded  street-car 1500 

§  379.  Judgment  [or  decree]   1501 

Form  No.  908.  For  plaintiff  upon  verdict 1501 

§  380.  Annotations 1502 


CHAPTER  CX. — Negligence  of  Carriers. — Actions  by  Persons  other  than 

Passengers. 

§  381.  Code  provisions  1507 

§  382.  Complaints  [or  petitions]  1521 

Form  No.  909.  For  damages  for  negligence  of  street  railway 

company  at  street-crossing   1521 

Form  No.  910.  For  damages  for  negligence  of  steam  railroad 

company  at  crossing  1522 

Form  No.  911.  By  pedestrian,  for  damages  for  personal  in- 
juries caused  by  the  negligence  of  a  railroad 
company 1524 

Form  No.  912.  Averment  of  petition  for  injuries  to  stock 
caused  by  neglect  of  railroad  company  to 
fence  its  road,  as  required  by  general  statute     1525 

Form  No.  913.  Against  railroad  company,  for  damages  for  the 

wanton  killing  of  stock 1525 

§  383.  Answers 1526 

Form  No.  914.  Defense   based   upon   duty   of  the   plaintiff   to 

make  [or  maintain]  cattle-fences 1526 

Form  No.  915.  Defense  based  upon  trespass  by  animals. — 
Action  for  injuries  to  stock,  alleged  to  have 

been  killed  while  on  defendant's  track 1527 

§  384.  Annotations 1528 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.  xxi 

CHAPTER  CXI. — Miscellaneous  Cases  of  Negligence. 

Page 

5  385.  Code  provisions  1530 

f  386.  Complaints  [or  petitions]  1530 

Form  No.  916.  For  negligent  maintenance  of  electric-light  plant 

and  system  of  wires  connected  therewith..  1530 
Form  No.  917.  For  damages  caused  by  negligent  breaking  of 

a  plate-glass  window  1532 

Form  No.  918.  For  damages  for  personal  injuries. — Negligence 

in  maintaining  excavation  in  highway 1532 

Form  No.  919.  For  negligently  managing  artificial  waterway.  1533 

Form  No.  920.  For  negligently  causing  fire   1534 

Form  No.  921.  For  negligent  navigation  of  boat 1534 

Form  No.  922.  For  injuries  to  sheep  caused  by  ferocious  dog. .  1534 
Form  No.  923.  By    guardian    ad    litem,    for   damages    against 

owners  of  vicious  animal  1535 

Form  No.  924.  By  next  friend,  for  damages  for  personal  in- 
juries caused  by  negligent  shooting 1537 

Form  No.  925.  For  damages  caused  by  waters  from  roof 1538 

Form  No.  926.  For  damages  caused  by  falling  snow  and  ice..  153S 
Form  No.  927.  For  negligent  collision  with  carriage  [or  auto- 
mobile]     1539 

§  387.  Answers 1539 

Form  No.  928.  Defense  alleging  plaintiff's  own  negligence 1539 

Form  No.  929.  Denial  of  defendant's  ownership  of  the  thing 

causing  injury   1539 

Form  No.  930.  Denial  of  plaintiff's  ownership  of  thing  injured 

or  destroyed  1540 

9  388.  Annotations 1540 


TITLE  XIV. — Actions  for  Wrongs. 


CHAPTER   CXII.— Slander   of   Title. 

S  389.  Complaint  [or  petition]  1547 

Form  No.  931.  For  slander  of  title.     (Common  form.) 1547 

§  390.  Annotations 1548 


CHAPTER  CXI  1 1. — Unlawful  Monopolies  and  Conspiracies. 

391.  Complaints  [or  petitions]   1550 

Form  No.  932.  For  damages  for  conspiracy  to  injure  business.  1550 
Form  No.  933.  For  damages  for  conspiracy  to  injure  business 

of  a  butcher  1551 

Form  No.  934.  Averment  of  damages  for  conspiracy  of  whole- 
sale merchants  in  restraint  of  trade 1553 


Xiii  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

Pa«© 
i  392.  Answer 1:663 

Form  No.  935.  Defense  averring  right  to  regulate  the  business 
of  defendants  to  prevent  ruinous  competition! 
of  rates,  in  action  for  alleged  conspiracy  of 
underwriters 1553 

CHAPTER  CXIV.— Boycotts  and   Unlawful   Strikes. 

E  393.  Complaints  [or  petitions]  1555 

Form  No.  936.  Against  labor   union,   to   restrain   interference 

with  conduct  of  business  1555 

Form  No.  937.  To  enjoin  a  combination  and  conspiracy  to  boy- 
cott.— Known  and  fictitious  parties  sued 1560 

§  394.  Decree 1561 

Form  No.  938.  In  an  action  to  enjoin  a  combination  and  con- 
spiracy to  boycott 1561 

CHAPTER  CXV. — Injuries  to  Personal  Property,  and  the  Unlawful  Detention 

Thereof. 

§  395.  Complaints   [or  petitions]    1563 

Form  No.  939.  For  malicious  injury  to  property 1563 

Form  No.  940.  For  wrongful  detention  of  personal  property...  1563 

§  396.  Answers  1564 

Form  No.  941.  Denial  of  damage 1564 

Form  No.  942.  Denial  of  taking  or  detention 1564 

§  397.  Annotations 1564 

CHAPTER   CXVI.— Fraud   and    Deceit. 

§  398.  Code  provisions  1566 

I  399.  Complaints  [or  petitions]  1567 

Form  No.  943.  For   cancelation   of  void    contract   on   grounds 

of  fraud  and  deceit  1567 

Form  No.  944.  For  fraud  in  obtaining  goods  on  credit 1568 

Form  No.  945.  For  fraudulently  procuring  credit  for  another..     1569 
Form  No.  946.  Against  a  vendor,  for  deceit  connected  with  the 

sale  of  land 1569 

Form  No.  947.  To  rescind  contract  for  purchase  of  stock  in- 
duced by  fraud   1570 

Form  No.  948.  For  fraudulently  inducing  subscription  to  stock 
where  device  of  a  secret  agreement  is  em- 
ployed       1572 

Form  No.  949.  For  fraudulently  representing  goods  sold  to  be 

the  property  of  the  seller 1573 

Form  No.  950.  To  rescind  contract  of  exchange  for  fraud 1573 

Form  No.  951.  To  recover  property  obtained  by  fraud  and  col- 
lusion, and  adjudge  plaintiffs  owners  thereof     1575 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.  xxlii 

Pag» 

|  400.  Answers 1B77 

Form  No.  952.  Denial  of  fraud I577 

Form  No.  953.  Defense  that  the  writing  declared  upon  in  the 
complaint  departed  from  the  oral  agreement 
in  substantial  and  material  respects,  and  was 
entered  into  through  the  false  and  fraudu- 
lent representations  of  the  plaintiff's  agent. 
— Action  to  recover  for  goods  sold  and  deliv- 
ered       1578 

§  401.  Order  and  decree  1579 

Form  No.  954.  Order  to  show  cause  and  preliminary  injunc- 
tion.— Action  to  rescind  contract  for  fraud. .     1579 
Form  No.  955.  Judgment    in    action    to    rescind    contract    for 

purchase  of  stock  induced  by  fraud 1580 

8  402.  Annotations 1581 


CHAPTER  CXVII. — Fraudulent  Transfers  and  Assignments. — Creditors'  Suits. 

§  403.  Complaints  [or  petitions]    1584 

Form  No.  956.  Creditors'  suit,  by  one  suing  on  behalf  of  him- 
self and  others 1584 

Form  No.  957.  Against  debtor,  to  reach  demands  due  him  from 

third  parties,  and  for  appointment  of  receiver     1585 

Form  No.  958.  Against  judgment  debtor  and  his  assignee,  to 
set  aside  fictitious  assignment  made  to  delay 
and  defraud  creditors 1586 

Form  No.  959.  To    set    aside   fraudulent   conveyance    of    real 

estate  made  by  judgment  debtor 1587 

Form  No.  960.  Against  judgment  debtor,  to  set  aside  fraudu- 
lent judgment  and  sale 1589 

§  404.  Answers 159° 

Form  No.  961.  Denying  return  of  execution 1590 

Form  No.  962.  Denying   possession   of   property    belonging   to 

the  debtor  1590 

Form  No.  963.  Averment  in  defense  that  defendant  has  assets     1590 

Form  No.  964.  Denial  that  conveyance  was  fraudulent 1590 

Form  No.  965.  Defense  that  deed  was  made  for  a  valuable  con- 
sideration.— Action  to   set  aside   an   alleged 

fraudulent  conveyance   1591 

§  405.  Judgments  [or  decrees]    1592 

Form  No.  966.  Confirming  deed  in  action  to  set  aside  the  same 

as  an  alleged  fraudulent  conveyance 1592 

Form  No.  967.  Following  order  sustaining  demurrer  to  com- 
plaint and  refusal  to  amend. — Action  in  the 

nature  of  a  creditor's  bill 1593 

§  406.  Annotations    1593 


XXIV  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

CHAPTER  CXVI 1 1.— Conversion  and  Trover. 

Pag« 

|  407.  Complaints  [or  petitions]  1595 

Form  No.  968.  For  conversion.     (Common  form.) 1595 

Form  No.  969.  Goods  in  defendant's  possession 1596 

Form  No.  970.  By  assignee  of  claim,  for  conversion  and  dam- 
ages    1596 

Form  No.  971.  By  seller  against  fraudulent  buyer  of  goods...  1596 

Form  No.  972.  Goods  taken  from  possession  of  bailee 1597 

Form  No.  973.  For  conversion  of  a  promissory  note 1597 

Form  No.  974.  For  conversion  of  a  bond 1598 

Form  No.  975.  By  executor  [or  administrator],  for  conversion  1598 
Form  No.  976.  Against  an  attorney,  for  conversion  of  money 

collected 1599 

Form  No.  977.  Against    warehouseman,    for    conversion    and 

damages 1599 

Form  No.  978.  For  malicious  conversion,  and  damages  result- 
ing therefrom 1601 

5  408.  Answers 1602 

Form  No.  979.  Denial  of  conversion 1602 

Form  No.  980.  Denial  of  taking 1602 

Form  No.  981.  Denial  of  ownership  1602 

Form  No.  982.  Denial  of  assignment  of  cause  of  action 1602 

§  409.  Annotations    1603 

CHAPTER  CXIX. — Trade-Marks  and  Trade-Signs. 

§  410.  Code  provisions  1606 

§  411.  Complaint  [or  petition]    1612 

Form  No.  983.  To  restrain  infringement  of  trade-mark  and  for 

damages 1612 

§  412.  Annotations 1613 

CHAPTER  CXX. — Actions  under  Civil  Damage  Acts. 

5  413.  Complaint  [or  petition]  1614 

Form  No.  984.  For  civil  damages  for  selling  intoxicating  liquor 

to  a  minor  son 1614 

I  414.  Annotations 1615 


TITLE  XV. — Provisional  Remedies  in  Civil  Actions. 

CHAPTER  CXXI.— Arrest  and  Bail. 

|  415.  Code  provisions 1617 

§  416.  References  to  forms 1622 

{  417.  Annotations 1622 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.       XXV 

CHAPTER  CXXII.— Claim  and  Delivery  of  Personal  Property.— Replevin. 

Pag« 

5  418.  Code  provisions  1624 

§  419.  Affidavits,  undertakings,  etc 1633 

Form  No.  985.  Affidavit  for  claim  and  delivery 1633 

Form  No.  986.  Demand  directed  to  the  sheriff  to  take  property     1633 
Form  No.  987.  Undertaking  for  the  return  to  the  defendant  of 

property  taken  in  claim  and  delivery 1633 

Form  No.  988.  Approval  of  undertaking  by  sheriff 1634 

Form  No.  989.  Claim  of  property  by  third  person,  and  de- 
mand for  return  thereof 1634 

Form  No.  990.  Undertaking  on  behalf  of  plaintiff,  given  on 
claim  made  by  third  person  to  property  at- 
tached       1634 

Form  No.  991.  Undertaking  to  indemnify  sheriff 1635 

§  420.  Verdicts,  judgments,  and  executions   1635 

Form  No.  992.  Verdict  for  the  plaintiff.    (In  general.) 1635 

Form  No.  993.  Verdict  as  to  special  interest  and  damages 1636 

Form  No.  994.  Alternative  judgment  for  plaintiff  in  replevin..     1636 
Form  No.  995.  Judgment  for  plaintiff  in  replevin.    (In  general.)     1637 

Form  No.  996.  Execution  in  replevin 1637 

S  421.  Complaints  [or  petitions]  1638 

Form  No.  997.  For  claim  and  delivery  of  personal  property...     1638 
Form  No.  998.  Goods  taken  from  possession  of  plaintiff's  as- 
signor       1639 

Form  No.  999.  To  recover  property  severed  from  realty 1639 

Form  No.  1000.  By  married   woman,   to  recover  possession  of 

separate  personal  property  or  value  thereof. .     1640 

§  422.  Answers 1641 

Form  No.  1001.  Defense  of  general  denial  1641 

Form  No.  1002.  Defense  that  title  is  in  another  than  plaintiff. .     1642 

Form  No.  1003.  Defense  that  defendant  is  part  owner 1642 

Form  No.  1004.  Defense  that  defendant  is  entitled  to  a  lien  on 

goods  for  storage  [or  freight] 1642 

Form  No.  1005.  Defense  by  common  carrier,  claiming  lien  for 
services. — In  replevin,  by  the  United  States 
of  America,  to  recover  goods   and  supplies 

transported  1643 

Form  No.  1006.  Defense  of  lien  for  services  for  manufacturing     1644 
Form  No.  1007.  Defense    by    sheriff. — Justification    of    taking 

under  attachment 1644 

Form  No.  1008.  Defenses — (1)  that  foreign  corporation  plaint- 
iff has  not  filed  articles  or  designated  resi- 
dent agent,  (2)  justification  of  the  taking  of 
outlawed  and  gambling  devices,  (3)  specific 
denials  of  values,  etc. — In  replevin,  by  for- 
eign corporation   1646 

9  423.  Annotations 1648 

Jury  s  PI. — 79c. 


XXVi  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

CHAPTER  CXXIII.— Injunction. 

Page 

§  424.  Code  provisions  1651 

§  425.  Complaints  [or  petitions]  1659 

Form  No.  1009.  For  injunction  against  waste 1659 

Form  No.  1010.  To  restrain  negotiation  of  note 1660 

Form  No.  1011.  To  restrain  threatened  injury  to  an  invaluable 

chattel 1660 

Form  No.  1012.  To  enjoin  obstruction  maintained  by  a  rail- 
road corporation  along  a  public  highway. . .     1661 
Form  No.  1013.  To  enjoin  claimants  from  asserting  or  claim- 
ing, except  in  present  action,  under  alleged 

mechanics'  liens 1662 

9  426.  Orders,  decrees,  etc 1663 

Form  No.  1014.  Order  to  show  cause,  and  interlocutory  in- 
junction        1663 

Form  No.  1015.  Temporary    injunction    pendente    lite,    condi- 
tioned on  giving  of  bond  by  the  plaintiff. . .     1664 
Form  No.  1016.  Injunction  pendente  lite  to  restrain  continu- 
ance of  trespass 1666 

Form  No.  1017.  Undertaking  on  injunction  1666 

Form  No.  1018.  Order  granting  motion  dissolving  injunction.  .     1667 

Form  No.  1019.  Order  dissolving  or  modifying  injunction 1667 

Form  No.  1020.  Judgment  for  defendant  dissolving  temporary 
injunction,  etc.,  in  action  to  restrain  a 
church     society     from    converting     church 

property,  misdirecting  its  use,  etc 1668 

§  427.  Annotations 1669 


CHAPTER  CXXIV. — Attachment  and  Garnishment. 

§  428.  Code  provisions  1673 

§  429.  Affidavits  1688 

Form  No.  1021.  For  attachment  against  residents.  (Common 
form — Alaska,  Arizona,  California,  Hawaii, 
Idaho,  Oregon,  Utah.) 1688 

Form  No.  1022.  For  attachment  against  non-resident,  upon  a 

contract 1689 

Form  No.  1023.  For  attachment  against  resident.     (Nebraska.)     1689 

Form  No.  1024.  For  attachment  against  non-resident,  where 
the  cause  of  action  is  to  recover  damages 
arising  from  an  injury  to  property  in  the 
state,  in  consequence  of  fraud,  negligence, 
or  other  wrongful  act 1690 

Form  No.  1025.  For  attachment  against  non-resident,  for  un- 
liquidated damages  ascertainable  under  a 
contract 1690 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.      xxvii 

Pa«« 
Form  No.  1026.  For  attachment   against   defendant   about   to 
leave  the  state  with  intent  to  defraud  cred- 
itors    1691 

f  430.  Undertakings   1692 

Form  No.  1027.  Undertaking  on  attachment 1692 

Form  No.  1028.  Oath  of  sureties  endorsed  upon  or  attached  to 

the  foregoing  undertaking 1693 

Form  No.  1029.  Undertaking  given  to  procure  an  order  to  dis- 
charge an  attachment 1693 

§  431.  Writ,  certificates,  return,  etc 1694 

Form  No.  1030.  Writ  of  attachment 1694 

Form  No.  1031.  Return  of  sheriff  to  writ  of  attachment 1695 

Form  No.  1032.  Notice  of  garnishment  [or  attachment]  of 
moneys  [etc.]  owing  [or  belonging]  to  de- 
fendant    1695 

Form  No.  1033.  Certificate  by  sheriff  of  execution  of  writ  of 

attachment  in  garnishment  proceeding....  1695 

Form  No.  1034.  Answer  of  garnishee  to  writ 1696 

Form  No.  1035.  Receipt  in  satisfaction  of  claim,  and  directing 

release  of  goods  attached 1696 

§  432.  Motions  and  orders  1696 

Form  No.  1036.  Motion  to  quash  writ  of  attachment.     (Special 

appearance.)   1696 

Form  No.  1037.  Order  releasing  attachment 1697 

Form  No.  1038.  Order  discharging  an  attachment  improperly 

or  irregularly  issued   1697 

Form  No.  1039.  Order  for  the  sale  of  attached  property 1697 

Form  No.  1040.  Order  reviving  proceedings  against  non-resi- 
dent defendant,  and  continuing  attachment 

proceeding 169S 

§  433.  Annotations    169S 

CHAPTER   CXXV.— Receivers. 

5  434.  Code  provisions 1702 

§  435.  Petitions  and  orders  for  leave  to  sue 1706 

Form  No.  1041.  Petition  for  leave  to  sue  a  receiver 1700 

Form  No.  1042.  Certificate  of  attorney  as  to  merits 1707 

Form  No.  1043.  Order  granting  leave  to  sue  a  receiver 1707 

Form  No.  1044.  Petition  of  receiver  for  leave  to  sue 1707 

Form  No.  1045.  Order  authorizing  receiver  to  sue 1708 

§  436.  Complaints  [or  petitions]  1709 

Form  No.  1046.  By  a  receiver  appointed  by  a  court  in  an  action  1709 
Form  No.  1047.  By  receiver  of  a  mining  corporation  to  recover 

assets  belonging  thereto    1710 

Form  No.  1048.  Action  against  a  receiver 1712 

§  437.  Annotations    1712 


XXViii  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

CHAPTER  CXXVI.— Deposit  in  Court. 

Page 

§  438.  Code  provisions 1713 

Form  No.  1049.  Motion  to  deposit  money   [or  other  personal 

property]  in  court 1714 

Form  No.  1050.  Order  for  deposit  in  court,  or  the  delivery  to 

another  party,  of  money  or  other  property     1715 

TITLE  XVI. — Compensatory  and  Specific  Relief. 

CHAPTER  CXXVI  I.— Damages. 

§  439.  Nature  and  extent  of  compensatory  relief - 1716 

§  440.  Interest  as  damages 1719 

§  441.  Damages  for  breach  of  contracts,  generally 1722 

§  442.  Damages  for  breach  of  carriers'  obligations 1724 

§  443.  Damages  for  breach  of  contracts  relating  to  real  property 1725 

§  444.  Damages  for  breach  of  contracts  relating  to  personal  property. . .  1728 

§  445.  Damages  for  wrongs   1730 

§  446.  Penal  damages 1737 

§  447.  Annotations 1742 

CHAPTER  CXXVIII.— Penalties  and  Forfeitures. 

§  448.  Code  provisions 1744 

§  449.  Complaints  [or  petitions]    1753 

Form  No.  1051.  For  penalty.     (General  form.) 1753 

Form  No.  1052.  For  penalty  for  violation  of  ordinance  of  board 

of  supervisors    1753 

Form  No.  1053.  For  penalty  for  sale  of  liquors  without  license  1754 

Form  No.  1054.  Against  witness  for  disobeying  subpoena 1754 

CHAPTER  CXXIX. — Specific  Performance. 

§  450.  Code  provisions 1756 

§  451.  Complaints  [or  petitions]    1760 

Form  No.  1055.  For  specific  performance  of  an  agreement  to 

make  a  lease  1760 

Form  No.  1056.  For  specific  performance  of  an  agreement  to 

exchange  property   1760 

Form  No.  1057.  By  vendee,  to  compel  specific  performance  of 

contract  to  convey  real  estate  under  which 

possession  was  given 1761 

Form  No.  1058.  Against  administrator  of  vendor's  estate,  for 

specific  performance  of  contract  made  with 

decedent 1763 

9  452.  Cross-complaint  [or  cross-petition]   1765 

Form  No.  1059.  By   defendant,  to   quiet  title  against  plaintiff 

who  sues  for  specific  performance 1765 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  H.      xxix 

Page 

|  453.  Answers 1765 

Form  No.  1060.  Denial  of  readiness  to  convey 1765 

Form  No.  1061.  Denial  of  payment  or  tender 1766 

Form  No.  1062.  Demand  after  plaintiff's  tender 1766 

Form  No.  1063.  Denial  of  title 1766 

Form  No.  1064.  Denial  of  performance 1766 

Form  No.  1065.  Defense  of  rescission  of  contract  by  agree- 
ment of  the  parties 1767 

Form  No.  1066.  Defenses — (1)  denials,  (2)  inadequate  and  un- 
fair consideration  and  fraudulent  represen- 
tations.— Action  for  specific  performance  of 

contract  to  convey  land 1767 

Form  No.  1067.  Defenses — (1)  that  contract  was  not  fair  or 
reasonable,  (2)  withdrawal  and  rescission  of 
contract. — Action  relating  to  sale  of  mining 

property 1769 

§  454.  Judgments  [or  decrees]   1770 

Form  No.  1068.  For  plaintiff    1770 

Form  No.  1069.  For  defendant 1771 

Form  No.  1070.  Decree  quieting  title  of  cross-complaiirant  in 
an  action  commenced  by  plaintiff  for  spe- 
cific performance    1771 

§  455.  Annotations 1772 


CHAPTER  CXXX. — Revision  or  Reformation  of  Contracts. 

§  456.  Code  provisions  1775 

§  457.  Complaints   [or  petitions]    1776 

Form  No.  1071.  For  reformation  of  a  deed  for  mistake.     (Gen- 
eral form.)    1776 

Form  No.  1072.  To  correct  and   reform   a   deed   to   lands   for 

mutual  mistake  1776 

Form  No.  1073.  To  reform  written  instrument,  and  for  specific 

performance  of  instrument  as  reformed....  1778 

§  458.  Annotations 1780 


CHAPTER  CXXXI— Rescission. 

§  459.  Code   provisions    1782 

§  46G.  Complaints   [or  petitions]    1783 

Form  No.  1074.  To  rescind  for  fraud 1783 

Form  No.  1075.  To  rescind  for  mistake,  and  to  recover  pay- 
ment made  in  escrow. — Stating  cause  also  in 
common  count  for  money  had  and  received  1784 
Form  No.  1076.  Cross-complaint  in  action  to  rescind  contract 
for  purchase  of  real  estate,  and  to  recover 
portion  of  purchase  price  paid 17gg 


XXX       ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

Pago 

§  461.  Answer 1788 

Form  No.  1077.  Defense  of  no  consideration,  and  of  matters 

that  would  justify  a  decree  of  rescission 1788 

§  462.  Judgment  [or  decree]   1789 

Form  No.  1078.  For  defendant  and  cross-complainant. — Action 
to  rescind  contract  for  purchase  of  real  es- 
tate,  and   to   recover   portion   of   purchase 

price  paid  1789 

§  463.  Annotations 1790 

CHAPTER  CXXXII. — Cancelation  of  Instruments. 

§  464.  Code  provisions 1792 

§  465.  Complaints  [or  petitions]   1792 

Form  No.  1079.  To  annul  a  contract 1792 

Form  No.  1080.  Supplemental  complaint  in  action  commenced 
by  special  administrators  and  continued  by 
executors  to  quiet  title  and  for  cancelation 

of  forged  deed  1794 

§  466.  Answer 1799 

Form  No.  1081.  Defense  that  instrument  was  executed  under 

undue  influence. — Action  to  cancel  deed. . . .     1799 

§  467.  Judgments  [or  decrees]   1 800 

Form  No.  1082.  Confirming  deed,  and  quieting  defendant's  title 
thereunder. — Action  to  cancel  deed  alleged 
to  have  been  executed  under  undue  influence  1800 
Form  No.  1083.  Annulling  deed,  and  quieting  plaintiff's  title 
as  against  the  same. — Action  for  cancela- 
tion of  forged  deed 1801 

§  468.  Annotations 1802 


TITLE  XVII.— Miscellaneous  Civil  Procedure. 

CHAPTER  CXXXIII. — Summons  and  Citation. — Jurisdiction. 

§  469.  Summons  1804 

Form  No.  1084.  Judgment  demanded.     (California.) 1804 

Form  No.  1085.  Alternative  relief.     (California.) 1804 

5  470.  Certificates,  orders,  etc 1805 

Form  No.  1086.  Sheriff's    certificate    of    service    of    summons. 

(Endorsed  on  original  summons.) 1805 

Form  No.  1087.  Notice   of   motion   to   quash   summons   or  its 

service   1805 

Form  No.  1088.  Order  extending  time  to  answer  after  decision 

on  motion  to  quash '  1806 

Form  No.  1089.  Affidavit  as  basis  of  order  for  service  by  pub- 
lication    1806 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.      xxxi 

Page 

|  «?1.  Citations,  orders,  etc 180? 

Form  No.  1090.  Citation.     (Common  form.) 1807 

Form  No.  1091.  Order  for  citation  to  executor  upon  applica- 
tion by  creditor 1807 

Form  No.  1092.  Acknowledgment  of  service  of  citation 1808 

Form  No.  1093.  Citation  to  executor  and  surviving  widow  to 
show   cause   why   family   allowance   should 

not  be  reduced 1808 

Form  No.  1094.  Order  sustaining  demurrer  to  petition  and  dis- 
charging citation 1809 

§  472.  Annotations 181° 

CHAPTER  CXXXIV.— Change  of  Place  of  Trial  or  Venue,  Generally.— 
Removal  of  Causes  to  Federal  Courts. 

§  473.  Procedure  for  change  of  venue  in  state  courts 1813 

Form  No.  1095.  Notice  of  motion  for  change  of  place  of  trial. .  1813 

Form  No.  1096.  Motion  for  change  of  place  of  trial 1814 

Form  No.  1097.  Demand  for  change  of  place  of  trial 1814 

Form  No.  1098.  Affidavit  of  residence 1815 

Form  No.  1099.  Affidavit  of  merits  1815 

Form  No.  1100.  Affidavit    of     residence    and    of    merits     for 

change  of  place  of  trial 1815 

Form  No.  1101.  Petition  for  change  of  venue 1816 

§  474.  Removal  of  cause  from  state  to  federal  court 1817 

Form  No.  1102.  Petition  for  removal  of  cause   from   state  to 
federal  court  on  the  ground  of  diversity  of 

citizenship 1817 

Form  No.  1103.  Petition    for    removal    where    the    action    is 

brought  by  a  citizen  against  an  alien 1818 

Form  No.  1104.  Petition  for  removal  where  a  federal  question 

is  involved    181S 

Form  No.  1105.  Order  of  removal  made  by  state  court 1818 

Form  No.  1106.  Bond  on  removal  of  action  from  state  to  fed- 
eral court 1819 

§  475.  Annotations I819 

CHAPTER  CXXXV.— Appearance  and  Default,  end  Substitution  of  Attorneys. 

|  476.  Appearances 1823 

Form  No.  1107.  Notice  of  special  appearance 1823 

Form  No.  1108.  Notice  of  general  appearance 1823 

Form  No.  1109.  Acknowledgment  of  service 1823 

5  477.  Defaults   1824 

Form  No.  1110.  Application  for  entry  of  default 1824 

Form  No.  1111.  Clerk's  entry  of  default  of  defendant  for  fail- 
ure to  appear 1824 


XXXij  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

Pag« 
Form  No.  1112.  Stipulation  to  set  aside  judgment  by  default 

and  to  reopen  cause 1824 

Form  No.  1113.  Order    on    stipulation,    setting    aside    default 

judgment 1825 

§  478.  Substitution  of  attorneys  1825 

Form  No.  1114.  Notice  of  substitution  of  attorneys 1825 

Form  No.  1115.  Consent  to  substitution  of  attorneys 1825 

Form  No.  1116.  Acknowledgment  of  notice  and  service  of  sub- 
stitution    1825 

§  479.  Annotations 182& 


CHAPTER  CXXXVI.— Notices,  Motions,  and  Orders. 

§  480.  Notice  of  pendency  of  action 1829 

Form  No.  1117.  Common  form 1829 

§  481.  Notices,  generally 1829 

Form  No.  1118.  Notice  of  decision 1829 

Form  No.  1119.  Notice  of  decision  in  favor  of  defendants  and 

cross-complainant 1830 

Form  No.  1120.  Notice   of   time    of   trial.      (With   waiver    by 

plaintiff  of  trial  by  jury.) 1830 

Form  No.  1121.  Notice  to  produce  documents  for  use  on  the 

trial 1830 

Form  No.  1122.  Notice  of  motion  to  dismiss  action 1831 

Form  No.  1123.  Notice   of  overruling   demurrer   and   granting 

time  to  answer 1831 

§  482.  Orders i832 

Form  No.  1124.  Order  extending  time  to  plead 1832 

Form  No.  1125.  Order  assigning  cause  1832 

Form  No.  1126.  Order  denying  or  overruling  motion  in  general  1832 
Form  No.  1127.  Order  on  motion  to  strike  pleading  from  the 

files 1832 

Form  No.  1128.  Order  granting  time  to  answer  upon  overruling 

demurrer 1833 

Form  No.  1129.  Order  granting  time  to  amend  after  sustaining 

demurrer 18S3 

Form  No.  1130.  Order  to  show  cause 1833 

Form  No.  1131.  Order  suspending  power  of  executor 1834 

Form  No.  1132.  Restraining  order  to   executor,   and   order  to 

show  cause  1834 

Form  No.  1133.  Order  revoking  letters  testamentary 1835 

§  483.  Annotations 183& 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.  xxxiii 

CHAPTER  CXXXVI I.— Affidavits,   Depositions,  and  Stipulations. 

Page 

S  484.  Affidavits 1837 

Form  No.  1134.  Affidavit  of  service  of  notice  on  a  person  not 

an  attorney  I837 

Form  No.  1135.  Affidavit  of  service  of  notice  by  mail 1837 

Form  No.  1136.  Affidavit  of  service  of  notice  on  an  attorney 

absent  from  his  office 1838 

Form  No.  1137.  Affidavit  of  service  of  notice  on  an  attorney  at 

his  residence  when  his  office  is  closed 1838 

Form  No.  1138.  Affidavit  of  service  of  notice  on  an  attorney  at 

office  in  charge  of  a  clerk  or  other  person. .     1839 
Form  No.  1139.  Affidavit   of   service   of   summons   on   several 
defendants.       (Endorsed    on    original    sum- 
mons.)       1839 

Form  No.  1140.  Affidavit  of  service  of  citation 1840 

§485.  Depositions  1840 

Form  No.  1141.  Stipulation  of  counsel  to  take  depositions 1840' 

.  Form  No.  1142.  Affidavit  upon  taking  deposition  of  defendant 

as  witness  for  plaintiff 1841 

Form  No.  1143.  Affidavit  for  taking  the  deposition  of  a  resi- 
dent witness 1841 

Form  No.  1144.  Affidavit  and  application  for  commission  for 
the  taking  of  the  deposition  of  a  non-resi- 
dent witness  1842 

Form  No.  1145.  Notice  of  taking  of  deposition 1842 

Form  No.  1146.  Commission  to  take  deposition  of  witness 1843 

Form  No.  1147.  Instructions  to  commissioner 1843 

Form  No.  1148.  Deposition  of  witness.     (To  be  annexed  to  the 

commission.) 1846- 

§  486.  Stipulations 1847 

Form  No.  1149.  Waiver  of  answer  1847 

Form  No.  1150.  Stipulation  to  transfer  cause  to  another  de- 
partment       1847 

Form  No.  1151.  Stipulation  to  dismiss  appeal 1848 

Form  No.  1152.  Stipulation  as  to  facts  1848 

Form  No.  1153.  Stipulation  to  restore  and  file  original  com- 
plaint destroyed  by  fire 1849 

§  487.  Annotations 1849' 

CHAPTER  CXXXVIII. — Inspection  of  Writings  and  Bill  of  Particulars. 

Form  No.  1154.  Notice  of  motion  for  an  order  for  inspection  of 
a  paper  [or  account,  or  entries],  and  for  a 
copy  thereof  1850' 

Form  No.  1155.  Affidavit  for  order  for  inspection  of  account 

[or  of  a  paper],  and  to  take  a  copy  thereof.     1851 


XXXiV      ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

Pag« 
Form  No.  1156.  Demand    to    have    inspection   of   an   original 

instrument 1851 

Form  No.  1157.  Demand  for  a  copy  of  an  account 1852 

Form  No.  1158.  Order  directing  party  to  furnish  bill  of  par- 
ticulars    1852 

§  488.  Annotations 1852 


CHAPTER  CXXXIX. — Trials,  Witnesses,  and  Proceedings  for  Contempt. 

§  489.  Trials 1854 

Form  No.  1159.  Order  for  drawing  trial  jury 1854 

Form  No.  1160.  Venire 1854 

Form  No.  1161.  Notice  of  motion  for  trial  of  special  issues  by 

jury 1855 

Form  No.  1162.  Order  for  trial  of  special  issues  by  jury 1855 

Form  No.  1163.  Minutes  and  certificate  of  drawing  jury 1856 

Form  No.  1164.  Order   consolidating   causes    for   purposes   of 

trial 1857 

Form  No.  1165.  Authorization  to  attorney  to  compromise  pend- 
ing action 1857 

Form  No.  1166.  Verdict 1858 

§  490.  Witnesses,  and  proceedings  for  contempt 1858 

Form  No.  1167.  Civil  subpoena  1858 

Form  No.  1168.  Attachment  against  a  witness  for  not  obeying 

a  subpoena  1859 

Form  No.  1169.  Attachment  for  defaulting   1859 

Form  No.  1170.  Affidavit  in  proceedings  for  punishing  a  con- 
tempt of  court.     (Common  form.) 1860 

Form  No.  1171.  Affidavit  in  proceedings  for  contempt. — Action 

at  law  to  prevent  usurpation  of  office 1860 

Form  No.  1172.  Motion  for  warrant  of  arrest  in  proceedings 
for  contempt  in  neglecting  and  refusing  to 

obey  a  judgment 1861 

Form  No.  1173.  Order  to  show  cause,  made  on  the  filing  of 

affidavit  charging  contempt 1861 

Form  No.  1174.  Warrant  of  attachment  to  be  issued  in  pro- 
ceedings to  punish  for  a  contempt  of  court.     1861 
Form  No.  1175.  Recitals  and  judgment  for  a  contempt  of  court 

committed  in  the  presence  of  the  court. .'. .     1861 
Form  No.  1176.  Judgment  in  a  proceeding  for  a  contempt  of 
court    against    a    witness    for    refusing    to 
answer  a  relevant  and  material  question. . . .     1862 
§  491.  Annotations 1863 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL  II.      XXXV 

CHAPTER  CXL. — Nonsuit  and  Dismissal. 

Page 

Form  No.  1177.  Dismissal  of  action  by  plaintiff 1867 

Form  No.  1178.  Stipulation  of  dismissal  on  compromise 1867 

Form  No.  1179.  Order  granting  motions  for  nonsuit,  and  allow- 
ing additional  time  in  which  to  prepare  and 

serve  bill  of  exceptions 1867 

Form  No.  1180.  Judgment  of  nonsuit   1868 

i  492.  Annotations 1869 

CHAPTER  CXLI. — Findings  and  Judgment. 

§  493.  Findings  of  fact  and  conclusions  of  law 1871 

Form  No.  1181.  Findings  of  fact  and  conclusions  of  law 1871 

Form  No.  1182.  Additional  findings. — Action  to  quiet  title,  and 
for  value  of  rents  and  profits,  and  for  resti- 
tution    1872 

§  494.  Judgments 1874 

Form  No.  1183.  Judgment  for  plaintiff  by  the  court 1874 

Form  No.  1184.  Judgment  for  defendant.     (Common  form.) . .  1875 

Form  No.  1185.  Entry  by  clerk  1875 

Form  No.  1186.  Judgment    by    the    court    on    verdict    for   the 

plaintiff 1875 

Form  No.  1187.  Judgment  for  plaintiff  on  verdict.     (Entry  by 

clerk.)   1876 

Form  No.  1188.  Judgment  of  dismissal.     (Entry  by  clerk.) 1876 

Form  No.  1189.  Judgment  of  default.     (Entry  by  clerk.) 1877 

Form  No.  1190.  Notice  of  motion  for  judgment  on  the  plead- 
ings    1877 

Form  No.  1191.  Order  sustaining  demurrer  without  leave  to 
amend,  and  granting  motion  for  judgment 

on  the  pleadings  1878 

Form  No.  1192.  Consent  of  plaintiff  to  reduction  of  judgment.  1878 

Form  No.  1193.  Nunc  pro  tunc  order  reducing  judgment 1879 

Form  No.  1194.  Satisfaction  of  judgment  for  costs 1879 

Form  No.  1195.  Amended  judgment  for  defendant 1880 

Form  No.  1196.  Order  of  sheriff's   sale  of  real  estate   under 

judgment 1880 

§  495.  Confession  of  judgment  without  action 1881 

Form  No.  1197.  Confession  of  judgment 1881 

Form  No.  1198.  Entry   of  judgment   confessed.      (Annexed   to 

the  foregoing.)   1882 

§  496.  Annotations 1882 

CHAPTER  CXLI  I. — Costs,  Executions,  and  Writs. 

§  497.  Costs  1886 

Form  No.  1199.  Notice  requiring  security  for  costs 1886 

Form  No.  1200.  Notice    of   motion    to    stay    proceedings    until 

security  for  costs  be  given 1887 


XXX  VI 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 


Pag» 
Form  No.  1201.  Memorandum  of  costs  and  disbursements  on 

part  of  plaintiff  [or  defendant] 1887 

Form  No.  1202.  Verification  of  the  foregoing 1887 

Form  No.  1203.  Acknowledgment  of  service  of  a  copy  of  mem- 
orandum of  costs.  (Endorsed  upon  mem- 
orandum of  costs.)   1888 

§  498.  Writs  of  execution,  assistance,  etc 1888 

Form  No.  1204.  Writ  of  execution  on  judgment 1888 

Form  No.  1205.  Writ  of  execution.     (Corporation  as  judgment 

debtor.) 1889 

Form  No.  1206.  Sheriff's  return  of  execution  unsatisfied.  (An- 
nexed to  foregoing  writ.) 1890 

Form  No.  1207.  Sheriff's    return    of    execution    unsatisfied. — 

Property  claimed  by  third  person 1890 

Form  No.  1208.  Writ  of  execution  for  fees  and  costs 1891 

Form  No.  1209.  Writ  of  execution.     (On  certified  abstract  of 

judgment  of  justice's  court.)   1892 

Form  No.  1210.  Writ  of  execution  for  deficiency  on  fore- 
closure       1893 

Form  No.  1211.  Execution  against  real  or  personal  property 

in  the  hands  of  an  executor,  etc 1894 

Form  No.  1212.  Execution  upon  writ  of  restitution 1895 

Form  No.  1213.  Writ  of  execution  after  remittitur  filed 1896- 

Form  No.  1214.  Writ  of  assistance 1897 

§  499.  Elements  of  petition  for  an  order  requiring  debtor  of  a  judgment 

debtor  to  appear  and  answer 1898 

§  500.  Annotations 1899 

CHAPTER  CXLIII. — New  Trials,  Appeals  [and  Writs  of  Error]. 

§  501.  New  trials  1904 

Form  No.  1215.  Notice  of  intention  to  move  for  new  trial 1904 

Form  No.  1216.  Notice  of  intention  to  move  for  a  new  trial, 

specifying  grounds  1904 

Form  No.  1217.  Notice  of  presentation  of  bill  of  exceptions  for 

settlement 1905 

Form  No.  1218.  Minute  order  denying  motion  for  new  trial...     1905 

Form  No.  1219.  Court  order  denying  motion  -for  new  trial 1906 

Form  No.  1220.  Conditional  order  granting  new  trial.     (Minute 

entry.) 1906 

Form  No.  1221.  Minute  entry  permitting  amendment  to  notice 
of  intention  to  move  for  new  trial,  and  deny- 
ing   motion    for    new    trial    upon    amended 

notice 1906 

Form  No.  1222.  Order    dismissing    motion    for    new    trial    for 

failure  to  prosecute   1907 

Form  No.  1223.  Notice    of   order   dismissing    motion   for   new 

trial 1907 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 


XXX  Vll 


Page 
i  502.  Appeals  [and  writs  of  error]  in  state  courts 1908 

Form  No.  1224.  Writ  of  error.    (Hawaii  statutory  form.) 1909 

Form  No.  1225.  Notice  of  appeal  from  judgment 1911 

Form  No.  1226.  Notice  of  appeal  from  part  of  a  judgment 1912 

Form  No.  1227.  Notice   of  appeal   from   judgment   and   order 

denying  motion  for  new  trial 1912 

Form  No.  1228.  Notice  of  appeal  from  judgment  granting  in- 
sufficient relief 1912 

Form  No.  1229.  Notice  of  appeal  from  order  denying  motion 

for  new  trial 1913 

Form  No.  1230.  Notice  of  appeal  on  questions  of  both  law  and 
fact  from  justice's  court  to  superior  court. 
(California.) 1913 

Form  No.  1231.  Acknowledgment  of  service  of  notice  of  appeal     1914 

Form  No.  1232.  Affidavit  of  mailing  notice  of  appeal 1914 

§  603.  Undertakings  on  appeal 1915 

Form  No.  1233.  Undertaking  for  costs  and  damages  [or 
charges]  on  appeal.  (California,  Minnesota, 
Montana,  Nevada,  North  Dakota,  South  Da- 
kota, Utah,  Washington,  Wisconsin) 1915 

Form  No.  1234.  Justification    of    sureties    upon    undertaking. 

(Common  form.)    1915 

Form  No.  1235.  Acknowledgment     of     undertaking.       (Under 

statutes  requiring  acknowledgment.) 1916 

Form  No.  1236.  Undertaking  by  surety  corporation 1916 

Form  No.  1237.  Undertaking  on  appeal,  to  stay  execution  of 

money  judgment  1916 

Form  No.  1238.  Undertaking  on  appeal  from  judgment  direct- 
ing payment  of  money  in  instalments 1917 

Form  No.  1239.  Undertaking  where  judgment  directs  delivery 

of  documents  or  other  personal  property.  . .      1918 

Form  No.  1240.  Undertaking  where  judgment  directs  sale  or 

delivery  of  real  property 1918 

form  No.  1241.  Undertaking  where  appeal  is  had  from  order 

vacating  writ  of  attachment  or  injunction. .     1919 
§  504.  Proceedings  for  writs  of  error  in  certain  state  courts 1919 

Form  No.  1242.  Writ  of  error  in  civil  action 1919 

Form  No.  1243.  Bond  for  costs  and  damages  on  writ  of  error 

in  civil  action 1920 

Form  No.  1244.  Supersedeas    bond   on    writ   of   error   in   civil 

action 1921 

Form  No.  1245.  Order  staying  proceedings  1921 

§  505.  Proceedings  for  writ  of  error  to  the  supreme  court  of  the  United 

States 1922 

Form  No.  1246.  Petition  for  writ  of  error 1922 

Form  No.  1247.  Assignment  of  error  on  petition  for  writ 1923 

Form  No.  1248.  Allowance  of  writ  of  error 1923 


XXXviii  ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

Page 

Form  No.  1249.  Bond  on  writ  of  error 1924 

Form  No.  1250.  Oath  of  sureties  to  foregoing  bond 1924 

Form  No.  1251.  Approval  of  bond  (annexed  thereto) 1925 

Form  No.  1252.  Writ  of  error 1925 

Form  No.  1253.  Citation  upon  writ  of  error 1926 

§606.  Miscellaneous  orders,  stipulations,  and  remittitur 1926 

Form  No.  1254.  Order  dispensing  with  undertaking  on  appeal 
from  judgment  or  order  denying  new  trial. 

(In  probate.)    1926 

Form  No.  1255.  Order  fixing  conditions  and  terms  of  under- 
taking on  appeal  from  an  intermediate 
order.  (North  Dakota,  South  Dakota,  Wis- 
consin.)       1927 

Form  No.  1256.  Waiver  of  undertaking  on  appeal 1928 

Form  No.  1257.  Waiver  of  undertaking  on  appeal,  and  of  de- 
posit in  lieu  thereof 1928 

Form  No.  1258.  Stipulation  as  to  correctness  of  transcript  on 

appeal  and  undertakings  on  appeal  filed. . . .     1928 

Form  No.  1259.  Order  dismissing  appeal  1929 

Form  No.  1260.  Order  dismissing  appeal  from  order  denying 
motion  for  new  trial  for  failure  to  file  under- 
taking       1929 

Form  No.  1261.  Order  denying  motion  to  dismiss  appeal  from 

the  judgment  1929 

Form  No.  1262.  Provisional  order  affirming  judgment  on  appeal     1930 
Form  No.  1263.  Order  of  supreme  court  as  to  exhibits. — Action 
to  quiet  title,  and  for  value  of  rents  and 

profits,  and  for  restitution 1930 

Form  No.  1264.  Stipulation    consolidating   various    causes    on 

appeal 1931 

Form  No.  1265.  Remittitur 1931 

|  507.  Annotations 1932 

CHAPTER  CXLIV.— Certification    of   Public    Records. 
Form  No.  1266.  Authentication  of  records  and  judicial  proceed- 
ings of  a  court  of  record  of  a  sister  state 

or  territory  of  the  United  States 1937 

Form  No.  1267.  Authentication  by  copy  of  non-judicial  records     1938 

Form  No.  1268.  Certificate  of  presiding  judge 1939 

Form  No.  1269.  Certificate  to  genuineness  of  signature  of 
superior  judge.     (Annexed  to  certificate  as 

in  the  preceding  form.) 1939 

Form  No.  1270.  Authentication  by  copy  of  a  judicial  record.  ..     1940 
Form  No.  1271.  Authentication   by   copy  of  a  judicial   record 

of  a  foreign  country 1940 

Form  No.  1272.  Authentication  of  a  document  in  a  sister  state 

or  territory   1941 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II.     xxxix 

Page 
Form  No.  1273.  Authentication  of  a  document  in  the  office  of 
a  department  of  the  United   States.     (An- 
nexed to  copy  of  document.) 1942 

Form  No.  1274.  Authentication  of  a  public  record  of  a  private 

writing.     (Annexed  to  copy  of  record.) 1942 

Form  No.  1275.  Certified  copy  of  order 1942 

Form  No.  1276.  Certificate    to    signature    and    attestation    of 

county  clerk 1943 


TITLE  XVIII.— Quasi-Civil  Proceedings. 

CHAPTER  CXLV. — Habeas  Corpus  Proceedings. 

Form  No.  1277.  Petition  for  writ.     (Common  form.) 1944 

Form  No.  1278.  Order  directing  writ  to  issue.    (Common  form.)  1945 

Form  No.  1279.  Writ  of  habeas  corpus.     (Common  form.) 1945 

Form  No.  1280.  Return  to  writ  of  habeas  corpus  or  certiorari 

other  than  official.     (Common  form.) 1946 

Form  No.  1281.  Order  for  discharge  of  prisoner 1947 

Form  No.  1282.  Order  denying  writ  and  remanding  prisoner..  1947 

§  508.  Annotations    1947 

CHAPTER  CXLVI. — Proceedings   in   Cases  of   Insanity, 
f  509.  Charges  of  insanity  and  proceedings  thereon.     (Cal.  Pol.  Code, 

§§  2168-2171.) 1948 

Form  No.  1283.  Affidavit  of  insanity 1949 

Form  No.  1284.  Warrant  of  arrest.     (Insane  person.) 1949 

Form  No.  1285.  Certificate  of  arresting  officer 1950 

Form  No.  1286.  Certificate  of  medical  examiners 1950 

Form  No.  1287.  Judgment  of  insanity  and  order  of  commit- 
ment of  insane  person 1952 

Form  No.  1288.  Statement  of  financial  ability 1954 

Form  No.  1289.  Clerk's  certificate  to  affidavit,  etc.,  judgment 
of  insanity,  order  of  commitment,  etc. 
(Annexed  to  judgment.) 1954 

CHAPTER  CXLVII.— Disbarment  of  Attorneys. 

Form  No.  1290.  Petition  for  disbarment 1955 

Form  No.  1291.  Verification  of  petition  for  disbarment.  (Cali- 
fornia.)          1956 

Form  No.  1292.  Order   addressed   to   accused    to   appear   and 

answer 1956 

Form  No.  1293.  Demurrer  or  objections  to  accusation 1957 

Form  No.  1294.  Judgment  of  disbarment  where  the  accusation 

is  based  upon  a  conviction  of  a  felony....     1957 
Form  No.  1295.  Judgment  or  order  of  suspension 1958 


xl 


ANALYTICAL  TABLE  OF  CONTENTS.— VOL.  II. 

CHAPTER   CXLVI 1 1.— Proceedings   in   Juvenile  Courts. 

Page 

Form  No.  1296.  Petition  for  arrest  and  examination  of  a  delin- 
quent minor,     (California.)   1961 

Form  No.  1297.  Citation  to  parent  or  custodian.  (California.)  1961 
Form  No.  1298.  Certificate  of  service  of  citation.  (California.)  1962 
Form  No.  1299.  Notice    to    parents,    custodian,    or    guardian. 

(Utah.)    1962 

Form  No.  1300.  Subpoena.     (California.)    1963 

Form  No.  1301.  Sheriff's    certificate    of    service    of    subpoena. 

(California.)    1963 

Form  No.  1302.  Commitment  of  dependent  child.  (California.)  1963 
Form  No.  1303.  Commitment  of  delinquent  child.     (California.)     1964 

Form  No.  1304.  Bench  warrant.     (California.) 1965 

Form  No.  1305.  Order  directing  time  of  service  of  bench  war- 
rant.    (California.)    1965 

Form  No.  1306.  Return  endorsed  upon  bench  warrant.     (Cali- 
fornia.)         1965 

Form  No.  1307.  Order  admitting  to  bail.     (California.) 1966 

Form  No.  1308.  Order  of  commitment  to  school  of  industry. 

(From  court  of  record,  California.) 1966 

Form  No.  1309.  Order  of  commitment  to  boys'  school  of  indus- 
try.     (From   court   of   limited   jurisdiction, 

California.)    1967 

Form  No.  1310.  Affidavit   on   application   for   a   permit   for   a 

minor  child  to  work.     (California.) 1968 

Form  No.  1311.  Recommendation  that  permit  issue 1969 

Form  No.  1312.  Order  granting  permit 1*69 


ADJUDICATED  FORMS 


OF 


PLEADING  AND  PRACTICE 


Jury's  P1.—7M.  <»m 


TITLE  XII. 

Actions  Founded  Upon  Contract. 

Chapter  LXXXIV.     Sale  and  Warranty 1239 

LXXXV.    Breach   of  Contracts   of  Sale  and  Pur- 
chase, and  of  Miscellaneous  Contracts.  1249 

LXXXVI.     Work  and  Services 1264 

LXXXVIL    Actions  for  Debt.— Goods  Sold  and  Deliv- 
ered    1277 

LXXXVIII.     Money  Had  and  Received. — Involuntary 

Trusts 1288 

LXXXIX.     Money  Lent 1294 

XC.     Money  Paid  for  the  Benefit  of  Another, 

and  on  Implied  Contracts 1296 

XCI.     Hiring  of  Personal  Property 1300 

XCII.     Hotelkeepers  or  Innkeepers 1301 

XCIIL    Bailment  or  Deposit 1311 

XCIV.     Partnership  and  Accounting 1319 

XCV.     Agency 1324 

XCVI.     Insurance 1335 

XCVII.     Negotiable  Instruments 1358 

XCVIII.     Guaranty  and  Suretyship 1399 

XCIX.     Chattel  Mortgages  and  Pledges 1409 

C.     Bonds  and  Undertakings 1418 

CI.     Subscription  Agreements 1432 

CII.     Charter-Party. — Maritime  Agreements  . .  1435 

CIII.    Breach  of  Promise  of  Marriage 1437 

CIV.     Actions  upon  Judgments 1439 

CHAPTER   LXXXIV. 

Sale  and  Warranty.  Page 

1 309.  Code  provisions    1240 

{  310.  Complaints  [or  petitions]   1240 

Form  No.  607.  For  breach  of  warranty  of  title 1240 

Form  No.  608.  On  warranty  of  note 1241 

Form  No.  609.  For  breach  of  warranty  as  to  judgment 1241 

Form  No.  610.  For  breach  of  warranty  on  sale  by  sample 1242 

Form  No.  611.  For  breach  of  warranty  of  quality  of  fruit-trees  1242 

(1239) 


1240  SALE  AND  WARRANTY.  [Tit.  XIL 

Form  No.  612.  Against  a  foreign  corporation,  to  rescind  a  con- 
tract for  breach  of  warranty  of  quality,  and 

to  recover  part  of  purchase  price  paid 1244 

Form  No.  613.  For  breach  of  warranty  on  sale  of  work  animals  1245 

Form  No.  614.  For  breach  of  warranty  on  sale  of  stallion 1246 

Form  No.  615.  For  breach  of  warranty  of  fitness  for  designated 

purpose 1246 

5  311.  Answers 1247 

Form  No.  616.  Defense  of  denial  of  warranty 1247 

Form  No.  617.  Denial  of  breach  of  warranty 1247 

Form  No.  618.  Counterclaim  on  breach  of  warranty 1247 

§  312.  Annotations    1248 

§309.     CODE  PROVISIONS. 

Sale  defined. 
California,  §  1721.     Sale  is  a  contract  by  which,  for  a  pecuniary 
consideration,  called  a  price,  one  transfers  to  another  an  interest  in 
property.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5079.     North  Dakota,  Rev.  Codes  1905,  §  5394. 
8outh  Dakota,  Rev.  Codes  1903,  C.  C.  §  1299. 
For  agreements  to  sell  and  purchase,  see  ch.  LXXXV. 

Warranty  on  sale  by  sample. 
California,  §  1766.    One  who  sells  or  agrees  to  sell  goods  by  sam- 
ple, thereby  warrants  the  bulk  to  be  equal  to  the  sample.     (Kerr's 
Cyc.  Civ.  Code.) 

Th«  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
not*  succeeding  and  the  difference  there  shown: 

•  Arizona,  Laws  1907,  p  229,  §  16(a).  Idaho,  Rev.  Codes  1909,  8  3325. 
Montana,  Rev.  Codes  1907,  §  5106.  North  Dakota,  Rev.  Codes  1905,  §  5420. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1325. 

a  Arizona,  Laws  1907,  pp.  229,  235,  §  16.  (a)  There  is  an  implied  warranty  that 
the  bulk  shall  correspond  with  the  sample  in  quality.  •  •  •  (Enacted  March 
17,  1907.) 

§310.     COMPLAINTS  [OR  PETITIONS]. 
FORM   No.  607 — For  breach  of  warranty  of  title. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19     ,  at  ,  the  defendant 

sold  and  delivered  to  the  plaintiff  [state  what],  for  the  sum  of  $         , 

then  paid  him  by  the  plaintiff. 


Ch.  LXXXIV.]         COMPLAINTS  [OR  PETITIONS].— FORMS.  1241 

2.  That  by  the  said  contract  of  sale  it  was  understood  by  the 
plaintiff  and  defendant  to  be,  and  it  was  a  part  of  the  terms  and  con- 
sideration of  said  contract  of  sale,  that  the  defendant  had  the  lawful 
right  and  title  to  so  sell  and  to  transfer  the  ownership  of  said  goods 
to  the  plaintiff. 

3.  That  the  defendant  had  in  fact  no  title  in  or  to  or  right  to  sell 
said  goods,  but  the  same  belonged  to  one  L.  M.,  who  thereafter,  on 
the  day  of  ,  19  ,  demanded  possession  of  the  same  from 
the  plaintiff;  that  the  plaintiff  was  compelled  and  did  then  deliver 
them  up  to  L.  M.,  and  they  were  wholly  lost  to  the  plaintiff. 

4.  That  by  reason  of  the  premises  the  plaintiff  was  misled  and 
injured,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  608 — On  warranty  of  note. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  defendant,  for  a  valu- 
able consideration,  offered  to  pass  to  the  plaintiff  a  promissory  note, 
of  which  the  following  is  a  copy :  [Copy  of  note],  then  and  there  war- 
ranting said  note  to  have  been  made  by  the  said  L.  M. 

2.  That  the  plaintiff,  confiding  in  and  relying  upon  said  warranty, 
purchased  said  note  of  the  defendant,  and  paid  him  therefor  the  sum 
of  $ 

3.  That  the  said  note  was  not  made  by  said  L.  M.,  but  that  his 
name  was  forged  thereto. 

4.  That  by  reason  of  the  premises  the  plaintiff  was  misled  and 
injured,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  609 — For  breach  of  warranty  as  to  judgment. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  on  the  day  of  ,  19     ,  the  defendant,  for  a  valu- 

able consideration,  duly  assigned  to  the  plaintiff  a  judgment  which 
he  had,  on  the  day  of  ,  19     ,  recovered  in  the  court 

of  the  county  of  ,  for  the  sum  of  $  ,  in  a  certain  action 

wherein  Y.  Z.,  the  defendant  herein,  was  plaintiff,  and  one  L.  M. 
was  defendant. 


1242  SALE  AND  WARRANTY.  [Tit.  XII. 

2.  That  said  assignment  contained  a  covenant  on  the  part  of  the 
defendant,  whereby  he  warranted  that  there  was  due  upon  said  judg- 
ment from  the  said  L.  M.  the  said  sum  of  $  ,  with  interest 
thereon  from  the           day  of            ,  19     . 

3.  That  in  truth,  at  the  time  of  said  assignment,  said  judgment  had 
been  paid  in  full  to  the  defendant,  and  no  part  thereof  was  or  now  is 
due  thereon. 

4.  That  by  reason  of  the  premises  the  plaintiff  was  misled  and  in- 
jured, to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM  No.  610 — For  breach  of  warranty  on  sale  by  sample. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  defendant  sold  to  the 
plaintiff  [state  what],  by  producing  to  him  a  pretended  sample 
thereof,  and  warranted  said  [article]  to  be  equal  in  quality  and 
description  to  such  sample. 

2.  That  said  [article]  was  not  equal  in  quality  and  description  to* 
said  sample,  but,  on  the  contrary,  was  greatly  inferior  in  quality 
thereto. 

3.  That  by  reason  of  the  premises  the  plaintiff  was  misled  and 
injured,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  611 — For  breach  of  warranty  of  quality  of  fruit-trees. 

(In  Murphy  v.  Stelling,  8  Cal.  App.  702;  97  Pac.  672.) 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendants,  and  alleges : 

1.  That  on  or  about  the  25th  day  of  February,  1894,  the  plaintiff 
applied  to  the  defendants  to  purchase  apricot  trees  of  the  number 
and  variety  hereinafter  mentioned,  and  the  defendants  on  said  date 
sold  and  delivered  to  the  plaintiff,  521  apricot  trees,  and  then  and 
there,  at  the  time  of  said  sale,  represented  and  warranted  to  plaintiff 
that  said  trees  were  of  the  Blenheim  variety. 

2.  That  plaintiff  relied  solely  upon  the  representations  and  war- 
ranty so  made  to  him  by  defendants,  as  aforesaid,  that  said  trees 
were  of  the  Blenheim  variety,  and  paid  defendants  therefor  the  sum 
and  price  by  them  demanded,  to  wit,  the  sum  of  $65. 


Ch.  LXXXIV.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1243 

3.  That  plaintiff,  on  and  about  the  10th  day  of  March,  1894, 
planted  said  trees  upon  land  owned  by  him,  and  has  continually  from 
the  date  of  said  planting  up  to  August,  1898, — that  is  to  say,  for  a 
period  of  four  years, — bestowed  upon  said  trees,  in  the  care  thereof, 
great  skill,  attention,  and  proper  cultivation. 

4.  That  said  trees  did  not  bear  fruit  until  in  or  about  the  month 
of  August,  1898,  and  plaintiff  then  first  discovered  that  207  of  said 
trees  were  not  of  the  Blenheim  variety,  but  that  they  were,  and  each 
of  them  was,  of  another  and  inferior  and  worthless  variety,  and  of 
no  value  whatever  to  plaintiff;  that  plaintiff  did  not  know,  nor  could 
he  ascertain  prior  to  the  fruitage  season  of  1898,  that  said  207  trees 
were  not  of  the  Blenheim  variety  so  purchased  and  paid  for  by  him, 
and  so  represented  and  warranted  by  defendants  as  aforesaid,  nor 
could  he  know  or  discover  by  ordinary  diligence  that  they  were  not 
of  said  Blenheim  variety  prior  to  said  fruitage  season,  and  until  in  or 
about  August  of  said  last-named  year. 

5.  That  the  land  of  plaintiff  upon  which  said  inferior  and  worth- 
less trees  were  planted,  and  upon  which  the  same  are  now  growing, 
is  worth  the  sum  of  $1,000  less  than  said  land  would  be  worth  were 
the  said  trees  growing  thereon  of  the  Blenheim  variety,  which 
plaintiff  supposed  he  had  purchased,  and  which  he  had  paid  for  as 
aforesaid. 

6.  That  by  reason  of  the  loss  of  the  crops  from  said  207  trees  for 
the  years  1898  and  1899,  plaintiff  has  sustained  great  loss  and  dam- 
age in  the  further  sum  of  $387.50;  that  by  reason  of  the  care  and 
cultivation  bestowed  upon  said  207  trees  of  said  inferior  and  worth- 
less variety,  plaintiff  has  sustained  further  loss  and  damage  in  the 
sum  of  $120 ;  that  by  reason  of  the  failure  of  said  defendant  to  fur- 
nish plaintiff  said  207  trees  of  said  Blenheim  variety,  so  paid  for  and 
supposed  to  have  been  purchased  by  plaintiff  as  aforesaid,  plaintiff 
has  sustained  further  loss  and  damage  in  the  amount  so  paid  defend- 
ant by  plaintiff  for  said  207  trees,  namely,  the  sum  of  $25.85. 

Wherefore,  plaintiff  prays  judgment  for  the  several  amounts  here- 
inabove set  forth, — that  is  to  say,  for  the  sum  of  $1,533.35,  together 
with  his  costs  herein  expended. 

Nicholas  Bowden, 

[Verification.]  Attorney  for  plaintiff. 


1244  SALE  AND  WARRANTY.  [Tit.  XII. 

FORM  No.  612 — Against  a  foreign  corporation,  to  rescind  a  contract  for 
breach  of  warranty  of  quality,  and  to  recover  part  of  pur- 
chase price  paid. 

(In  Kullman,  Salz  &  Co.  v.  Sugar  A.  M.  Co.,  153  Cal.  725;  96  Pac. 

369.) 

[Title  of  court  and  cause.] 

Now  comes  the  plaintiff  in  the  above-entitled  action,  and  for  cause 
of  action,  alleges: 

1.  [Averment  as  to  incorporation  of  the  plaintiff  company.] 

2.  [Averment  as  to  defendant  company  as  a  foreign  corporation.] 

3.  That  heretofore,  to  wit,  on  or  about  the  20th  day  of  June,  1900, 
the  plaintiff  and  the  defendant  entered  into  a  contract  in  writing 
for  the  purchase  and  sale  of  a  Lillie  triple-effect  evaporator,  which 
said  contract  is  in  words  and  figures  as  follows,  to  wit :  [Here  fol- 
lows copy  of  contract.] 

4.  That  the  said  apparatus  mentioned  in  said  written  contract 
was  warranted  to  evaporate  300  gallons  of  water  per  hour,  as  speci- 
fied therein;  that  the  apparatus  delivered  to  plaintiff  under  said 
contract  was  not  capable,  under  the  conditions  specified,  all  of  which 
were  observed  fully  by  plaintiff,  to  evaporate  300  gallons  of  water 
under  the  conditions  as  specified  in  said  contract,  but  failed  very 
largely  to  accomplish  the  work  required  thereof,  and  was  incapable 
of  evaporating  more  than  [200]  gallons  per  hour  under  said  condi- 
tions. 

5.  That  plaintiff  believed  the  representations  of  defendant,  and 
entered  into  said  contract  solely  by  reason  of  said  representations 
and  the  said  warranty  therein  contained,  and  plaintiff  was  unable 
to  ascertain  the  truth  or  falsity  of  said  representations  before  enter- 
ing into  said  contract. 

6.  7.  [Here  follow  averments  as  to  the  inefficiency  of  the  machine 
supplied,  and  notice  given  to  defendant  that  it  did  not  meet  the 
requirements  of  the  contract.]  *  *  *  And  plaintiff  offered  to 
return  said  apparatus  to  defendant  upon  receiving  a  satisfactory 
machine  or  the  amount  theretofore  paid  by  plaintiff  on  account  of 
the  purchase  price  of  said  apparatus. 

8.  That  plaintiff  has  paid  on  account  of  the  purchase  price  of  said 
machine,  and  expended  thereon  in  an  endeavor  to  cause  the  same  to 
perform  the  work  required  as  specified  in  said  contract,  the  sum  of 
$2,132.31,   no   part   of  which   sum   has   been   paid   to   plaintiff  by 


Ch.  LXXXIV.]         COMPLAINTS  [OR  PETITIONS].— FORMS.  1245 

defendant,  nor  has  any  satisfactory  machine  been  furnished  to 
plaintiff  by  defendant  in  place  of  the  one  furnished  under  said  con- 
tract. 

9.  That  previous  to  the  commencement  of  this  action  plaintiff 
notified  defendant  of  its  rescission  of  said  contract  by  reason  of  the 
failure  of  defendant  to  furnish  a  machine  in  accordance  with  the 
terms  of  said  contract. 

Wherefore,  plaintiff  prays,  that  \%  be  adjudged  and  decreed  that 
said  contract  is  void,  and  that  plaintiff  have  judgment  against 
defendant  for  the  sum  of  $2,132.31,  with  interest  on  the  payments 
made  from  the  dates  of  said  payments,  and  for  costs  of  suit. 

M.  B.  Kellogg, 
A.  E.  Shaw, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  613 — For  breach  of  warranty  on  sale  of  work  animals. 

(In  Sierra  L.  &  C.  Co.  v.  Brieker,  3  Cal.  App.  190;  85  Pac.  665.) 

[Title  of  court  and  cause.] 

Now  comes  the  plaintiff,  and  for  cause  of  action  alleges : 

1.  [Averment  of  incorporation  of  plaintiff  company.] 

2.  [Averment  as  to  defendants  as  copartners.] 

3.  That  on  or  about  the  4th  day  of  April,  1904,  at  Los  Angeles, 
California,  plaintiff  purchased  from  defendants  two  mares  upon  the 
following  express  representations  of  defendants,  and  warranty  in 
writing,  that  said  animals  were  sound  and  without  blemish,  a  copy 
of  which  is  as  follows,  to  wit:    [Here  copy  of  agreement  is  set  out.] 

4.  That  on  or  about  the  said  4th  day  of  April,  1904,  plaintiff  paid 
defendants  the  sum  of  $360  for  said  animals,  and  expended  [here 
are  set  forth  other  payments  and  expenses  which  defendants  agreed 
to  refund  if  the  team  was  not  as  represented] . 

5.  That  after  a  thorough  test  had  been  made  plaintiff  discovered 
that  *  *  *  neither  of  said  mares  was  sound  or  without  blemish, 
in  this:    [Here  defects  are  specified.] 

6.  That  on  or  about  April  23,  1904,  plaintiff  notified  defendants 
that  said  animals  were  not  satisfactory;  that  they  were  both  un- 
sound and  blemished,  and  offered  to  return  the  same,  and  demanded 
a  return  of  the  purchase  price,  but  defendants  refused  to  receive  the 
said  animals,  and  still  refuse  to  receive  them. 


124G  SALE  AND  WARRANTY.  [Tit.  XII. 

7.  That  plaintiff  has  fed  and  cared  for  said  team  from  April  5, 
1904,  and  is  still  caring  for  the  same;  that  $2  per  day  is  a  reasonable 
sum  for  the  feed  and  care  of  the  said  animals  [etc.]. 

[Prayer  for  judgment.]  Hahn  &  Hahn, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  614 — For  breach  of  warranty  on  sale  of  stallion. 

(In  Watson  v.  Roode,  43  Neb.  348;  61  N.  W.  625.) 
[Title  of  court  and  cause.] 

1.  The  plaintiff  complains  of  the  defendant  for  that  on  the  18th 
day  of  November,  1884,  the  defendant,  as  an  inducement  to  plaintiff 
to  purchase  from  him,  defendant,  a  certain  imported  black  stallion 
called  "Knight  of  the  Shires,"  for  the  sum  of  $2,000,  warranted  the 
said  horse  to  be  a  foal-getter  and  sound  in  every  respect;  *  *  * 
that  his,  defendant's,  title  to  the  same  was  clear,  and  that 
said  horse  was  registered  in  the  studbook  of  England,  as  also  was 
his  dam  and  sire,  and  that  he,  defendant,  would  furnish  the  secre- 
tary's receipt  for  such  pedigree;  and  plaintiff,  relying  on  said  war- 
ranty and  statements,  purchased  said  horse  from  the  defendant  for 
the  sum  of  $2,000,  then  duly  paid. 

2.  Plaintiff  avers  that  said  horse,  at  the  time  of  said  sale,  was 
unsound  in  this :  That  [here  the  defects  are  set  forth]  ;  that  because 
of  said  defects  said  horse  was  of  no  value  whatever;  that  [here  are 
stated  other  defects  and  maladies  of  the  horse],  all  of  which  the 
said  horse  had  at  the  time  of  the  said  purchase,  and  which,  com- 
bined, caused  the  death  of  said  horse  on  the  16th  day  of  June,  1886. 

3.  Plaintiff  avers  that  the  pedigree  of  said  horse  was  not  as  war- 
ranted by  the  defendant,  and  that  the  defendant  never  has  furnished 
the  secretary's  receipt  for  such  pedigree,  as  agreed  to  be  done  on  the 
part  of  the  defendant. 

4.  Plaintiff  avers  that  said  horse  was  not  a  foal-getter,  and  by 
reason  of  the  above  premises  plaintiff  has  sustained  damages  in  the 
sum  of  $5,000. 

[Prayer,  etc.] 

FORM   No.  615 — For  breach  of  warranty  of  fitness  for  designated  purpose. 
[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  on  the  day  of  ,  19     ,  at  ,  the  defendant 

gold  and  delivered  to  the  plaintiff  [stating  what],  for  the  purpose- 


Ch.  LXXXIV.]  ANSWERS.— FORMS.  1247 

[stating  what],  for  valuable  consideration,  and  then  and  there,  as 
part  of  the  contract  of  sale,  warranted  the  same  to  be  fit  and  proper 
for  such  purpose. 

2.  That  the  said  [articles]  were  not  then,  nor  since,  reasonably  fit 
or  proper  to  be  used  for  [designating  purpose]. 

3.  That  the  plaintiff,  confiding  and  relying  upon  said  warranty,  did 
on  the  day  of  ,  19  ,  expend  $  in  using  and  apply- 
ing said  articles  on 

4.  That  by  reason  of  the  premises  the  plaintiff  was  misled  and 
injured,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

§311.     ANSWERS. 

FORM   No.  616 — Defense  of  denial  of  warranty. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Defendant  denies  that  he  promised  or  represented  to  the  plaintiff 
that  the  said  [horse]  was  sound  or  gentle  or  quiet  in  harness;  but 
alleges  that  the  plaintiff  purchased  said  [horse]  with  notice  [state 
defect,  if  any] ,  and  not  confiding  in  or  relying  upon  any  representa- 
tions of  the  defendant. 

[Etc.] 

FORM   No.  617 — Denial  of  breach  of  warranty. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 
Defendant  alleges  that  at  the  time  of  the  sale  mentioned  therein 
said  horse  was  sound  [etc.,  following  terms  of  warranty]. 
[Etc.] 

FORM   No.  618 — Counterclaim  on  breach  of  warranty. 

[Title  of  court  and  cause.] 

The  defendant,  for  a  counterclaim  herein,  alleges  that  at  the  time 
of  the  sale  of  the  goods  in  the  complaint  mentioned  the  plaintiff  rep- 
resented and  warranted  that  [here  allege  the  warranty]. 

[Allege  breach  of  said  contract  of  warranty,  the  particulars  there- 
of, and  the  damages  resulting  to  defendant  therefrom.] 

[Etc.] 


1248 


SALE  AND  WARRANTY. 


[Tit.  XIL 


§312.     ANNOTATIONS.— Sale  and  warranty. 

1,  2.  Remedies   where   breach   of  warranty  occurs. 

3.  Profits   under  "general  damage"  clause. 
4,  5.  Defense  of  failure  of  consideration. 

6.  Liability  of  vendor  of  article  to  third  person. 


1.  Remedies  where  breach  of  warranty 
occurs. — In  the  case  of  an  executed 
sale,  the  buyer  may  accept,  although  the 
goods  do  not  comply  with  the  warranty, 
and  recover  damages  for  the  breach: 
Davidson  Bros.  Co.  v.  Smith  (Iowa), 
121   N.    W.    503. 

2.  The  defendant  is  entitled  to  rely  on 
whichever  defense  the  evidence  tends 
to  establish,  where  the  question  is  sub- 
mitted by  the  pleadings  as  to  whether 
the  acts  of  defendant  constituted  a  re- 
scission, or  whether  they  were  consist- 
ent with  an  intention  to  claim  damages 
for  breach  of  warranty:  Davidson  Bros, 
v.  Smith  (Iowa),  121  N.  W.  503;  Bruner 
v.  Brotherhood  of  American  Yeomen, 
136  Iowa  612,  111  N.  W.  977;  Cole  v. 
Laird,  121  Iowa  146,  96  N.  W.  744;  Mal- 
lory  Com.  Co.  v.  Elwood,  120  Iowa  632, 
95  N.  W.  176;  Thorson  &  C.  Co.  v. 
Baker,  107  Iowa  49,  77  N.  W.  510. 

3.  Profits  as  general  damages. — Dam- 
ages which  plaintiff  sues  for  in  a  case 
to  recover  for  breach  of  warranty  of 
quality  of  goods  sold  by  defendant,  and 
profits  which  plaintiff  alleges  it  would 
have  made  if  the  goods  had  been  as 
warranted,  may  be  recovered  as  general 
damages,  and  it  is  not  necessary  that 
the  "profits"  be  specially  alleged:  Ger- 
main Fruit  Co.  v.  Armsby  Co.,  153  Cal. 
585,  590,  96  Pac.  319;  Tahoe  Ice  Co.  v. 
Union  Ice  Co.,  109  Cal.  242,  41  Pac.  1020. 

4.  Defense  of  failure  of  consideration. 
— Proof  of  failure  of  consideration, 
standing  alone,  would,  if  properly 
pleaded,  be  a  good  defense  in  a  suit  on 
a  note  by  the  payee  against  the  makers, 
but  will  not  support  a  case  bottomed 
on  a  warranty  and  a  breach  thereof: 
Crenshaw  v.  Looker,  185  Mo.  375,  84 
S.  W.  885;  Brown  v.  Weldon,  27  Mo. 
App.  261,  99  Mo.  564,  13  S.  W.  342. 

5.  But  this  does  not  mean  that  proof 
of  want  of  consideration,  when  pleaded 
in  a  case  on  breach  of  warranty,  would 


not  be  good.  In  an  action  upon  a  prom- 
issory note  given  for  the  purchase  price 
of  an  article  bought  for  a  particular 
purpose,  whether  upon  an  express  or 
implied  warranty,  with  or  without 
fraud,  it  is  not  necessary  that  the  pur- 
chaser should  return  the  article  or  offer 
to  return  it,  or  to  rescind  the  contract, 
or  that  such  article  should  be  wholly 
worthless,  in  order  that  he  may  avail 
himself  of  his  plea  of  failure  of  consid- 
eration; yet,  if  he  retains  the  article, 
and  does  not  offer  to  return  It,  and  such 
article  is  not  wholly  worthless,  such 
plea  can  avail  him  only  so  far  as  to  de- 
feat a  recovery  on  the  note  to  the  ex- 
tent of  the  difference  between  the  value 
of  the  article,  had  it  been  such  as  it 
was  represented  to  be,  and  its  value 
such  as  it  was  shown  really  to  be: 
Broderick  v.  Andrews,  135  Mo.  App.  57, 
115  S.  W.  519,  520;  Brown  v.  "Weldon, 
27  Mo.  App.  251,  99  Mo.  564,  13  S.  W. 
342;  Shepherd  v.  Padgitt,  91  Mo.  App. 
473;  Miles  v.  Withers,  76  Mo.  App.  87; 
Fairbanks  v.  Baskett,  98  Mo.  App.  53, 
71  S  W.  1113;  Williams  v.  Baker,  100 
Mo.  App.  284,  73  S.  W.  339;  Ferguson 
Implement  Company  v.  Parmer,  128  Mo. 
App.  300,   107  S.  W.   469. 

6.  Liability  of  vendor  of  article  to  a 
third  person. — The  manufacturer  of  ma- 
chinery is  not  liable  to  a  person,  other 
than  the  vendee,  for  an  injury  caused 
by  breakage,  in  those  cases  where  the 
article  sold  is  not  inherently  of  a  dan- 
gerous character:  Heizer  v.  Kingsland 
etc.  Mfg.  Co.,  110  Mo.  605,  19  S.  W.  630, 
33  Am.  St.  Rep.  482,  15  L.  R.  A.  821. 
See  Roddy  v.  Missouri  Pacific  R.  Co., 
104  Mo.  234,  15  S.  W.  1112,  24  Am.  St. 
Rep.  333,  12  L.  R.  A.  746;  Gordon  v. 
Livingston,  12  Mo.  App.  267;  Loop  v. 
Litchfield,  42  N.  Y.  351,  1  Am.  Rep.  513; 
Losee  v.  Clute,  51  N.  Y.  494,  10  Am.  Rep. 
638;  National  Sav.  Bank  v.  Ward,  10* 
U.  S.  185,  25  L.  ed.   625. 


Oh.  LXXXV.]  CODE  PROVISIONS.  1249 


CHAPTER   LXXXV. 

Breach  of  Contracts  of  Sale  and  Purchase,  and  of  Miscellaneous  Contracts. 

Page 

$  313.  Code  provisions  1249 

S  314.  §  314.  Complaints   [or  petitions]    1251 

Form  No.  619.  For  breach  of  contract  of  sale  and  to  recover 

for  goods  sold   1251 

Form  No.  620.  For  breach  of  contract  to  furnish  engine  and 

engineer  at  the  opening  of  threshing  season.  1252 
Form  No.  621.  For  breach  of  contract  in  furnishing  irrigating 

plant  1253 

Form  No.  622.  Upon  contract  to  purchase  stock  in  default  of 

corporation  to  pay  dividends   1254 

Form  No.  623.  For  breach  of  an  option  contract  to  repurchase 

stock 1255 

Form  No.  624.  For  breach  of  contract  for  purchase  of  fruit...  1256 
Form  No.  625.  Averments  as  to  damages  for  breach  of  con- 
tract to  purchase  oil   125S 

S  315.  Answers  1259 

Form  No.  626.  Defense  of  non-compliance  with  contract 1259 

Form  No.  627.  Defense  of  coverture  of  the  defendant 1259 

Form  No.  628.  Defense  of  breach  of  contract  to  feed  and  care 

for  animals,  and  cross-complaint  for  damages  1259 

5  316.  Judgment  [or  decree]   1261 

Form  No.  629.  For  plaintiff. — Damages  for  breach  of  contract 

to  purchase \ 1261 

§  317.  Annotations - 1261 


§313.     CODE   PROVISIONS. 

Agreement  to  sell  defined. 

California,  §  1727.  An  agreement  to  sell  is  a  contract  by  which 
one  engages,  for  a  price,  to  transfer  to  another  the  title  to  a  certain 
thing.      (Kerr's  Cyc.   Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

*  Arizona,  Laws  1907,  p.  229,  §  1,  sub.  1.  Montana,  Rev.  Codes  1907,  §  5082. 
North  Dakota,  Rev.  Codes  1905,  §  5397.  South  Dakota,  Rev.  Codes  1903. 
C.  C.    §1302. 

a  Arizona,   Laws   1907,    p.    229,    §  1.      (1)     A    contract   to   sell   goods    is   a   contract 
whereby   the   seller   agrees    to   transfer   the   property   in   goods    to    tbe   buyer   for   a 
consideration  called  the  price.     »     •     *     (Enacted  March  21,  1907.) 
Jury's  PI. — 79. 


1250  BREACH   OF  CONTRACTS  OF   SALE,   ETC.  [Tit.  XIL 

Agreement  to  buy  denned. 
California,  §  1728.     An  agreement  to  buy  is  a  contract  by  which 
one  engages  to  accept  from  another,  and  pay  a  price  for  the,  title 
to  a  certain  thing.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5083.     North  Dakota,  Rev.  Codes  1905,  §  5398. 
South   Dakota,  Rev.  Codes  1903,  C.  C.  §  1303. 

Agreement  to  sell  and  buy  denned. 
California,  §  1729.     An  agreement  to  sell  and  buy  is  a  contract 
by  which  one  engages  to  transfer  the  title  to  a  certain  thing  to 
another,  who  engages  to  accept  the  same  from  him  and  to  pay  a 
price  therefor.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5084.     North  Dakota,  Rev.  Codes  1905,  §  5399.. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1304. 

Property  subject  of  agreement  for  sale. 
California,  §  1730.    Any  property  which,  if  in  existence,  might  be 
the  subject  of  sale,  may  be  the  subject  of  an  agreement  for  sale, 
whether  in  existence  or  not.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arizona,  Laws  1907,  p.  229,  §5,  subs.  1,  2.  Montana,  Rev.  Codes  1907, 
§  5085.  North  Dakota,  Rev.  Codes  1905,  §  5400.  South  Dakota,  Rev.  Codes 
1903,  C.  C.  §1305. 

a  Arizona,  Laws  1907,  pp.  229,  231,   §  5.  (2)     There   may  be  a  contract  to  sell 

(1)     The  goods  which   form   the  subject       goods,    the   acquisition   of  which   by  the 
of  a  contract  to  sell  may  be  either  exist-       seller  depends  upon  a  contingency  which 
lng   goods,    owned   or   possessed   by    the       may  or  may  not  happen.    •    •    •     (En- 
seller,    or  goods   to  be   manufactured   or       acted  March   21,   1907.) 
acquired  by  the  seller  after  the  making 
of  the  contract  to  sell,  in  this  act  called 
"future  goods." 

Sale  at  auction— Rights  of  buyer. 
California,  §  1796.  If,  at  a  sale  by  auction,  the  auctioneer,  having 
authority  to  do  so,  publicly  announces  that  the  sale  will  be  with- 
out reserve,  or  makes  any  announcement  equivalent  thereto,  the 
highest  bidder  in  good  faith  has  an  absolute  right  to  the  completion 
of  the  sale  to  him ;  and,  upon  such  a  sale,  bids  by  the  seller,  or  any 
agent  for  him,  are  void.     (Kerr's  Cyc.  Civ.  Code.) 


Ch.  LXXXV.]       COMPLAINTS   [OR  PETITIONS].— FORMS.  1251 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5126.     North  Dakota,  Rev.  Codes  1905,  §  5440. 
South   Dakota,  Rev.  Codes  1903,  C.  C.  §  1345. 

§314.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  619 — For  breach  of  contract  of  sale  and  to  recover  for  goods  sold. 

(Adapted  from  Savage  v.  Salem  Mills  Co.,  48  Ore.  lj  85  Pac.  69;  10 
Am.  &  Eng.  Ann.  Cas.  1065.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  the  defendant  is,  and  during  all  times  herein  mentioned  has 
been,  a  corporation  duly  organized  and  existing  under  and  by  virtue 
of  the  laws  of  the  state  of  Oregon,  and  doing  therein  a  general  mill- 
ing business;  that  at  all  the  times  mentioned  in  this  complaint,  and 
for  many  years  prior  thereto,  the  defendant  had  owned  and  operated 
a  flouring-mill,  having  in  conjunction  therewith,  and  connected  there- 
to by  stationary  mechanical  wheat-conveyors,  a  storage-house,  to 
hold  and  retain  wheat  received  by  it  until  such  wheat  shall  be  sold  or 
manufactured  into  flour  or  other  mill  products;  that  during  all  the 
times  herein  mentioned  it  was  the  custom  and  usage  of  the  defendant 
to  receive  wheat  from  the  farmers,  giving  load-checks  therefor,  show- 
ing the  name  of  the  person  from  whom  received,  the  date  and  num- 
ber of  bushels,  and  thereafter,  at  the  convenience  of  the  parties,  issue 
a  receipt  to  the  holders  of  such  load-checks,  a  copy  of  which  receipt  is 
hereunto  annexed  and  made  a  part  of  this  complaint,  and  marked 
"Exhibit  A";  that  it  was  also  during  all  said  times  the  custom  and 
usage  of  the  defendant,  known  and  agreed  to  by  the  parties  deliver- 
ing wheat  to  it,  to  mix  the  wheat  received  with  its  consumable  stock, 
and  to  sell  the  same,  or  grind  it  into  flour  and  sell  the  flour  at  its 
pleasure,  and  to  retain  the  proceeds  thereof;  and  that  the  party  deliv- 
ering the  wheat,  by  paying  2y2  cents  per  bushel  for  storage  and  Sy2 
cents  per  bushel  for  sacks,  could  demand  payment  for  the  wheat  so 
delivered  in  merchantable  wheat  at  any  time  before  the  1st  day  of 
July  next  following  the  delivery,  subject,  however,  to  the  defendant's 
preferred  right  to  purchase,  but  in  case  such  demand  should  not  be 
made  prior  to  the  date  stated,  it  shall  be  optional  with  the  defendant 
whether  to  pay  the  quantity  price  of  wheat  of  the  kind  and  quantity 
delivered  at  the  date  of  the  demand,  or  deliver  an  equal  quantity  of 
merchantable  wheat  upon  the  payment  of  the  storage  and  for  sacks. 


1252  BREACH   OF   CONTRACTS  OF   SALE,   ETC.  [Tit.  XII. 

2.  That  said  custom  and  usage  were  known  and  agreed  to  by  all 
parties  doing  business  with  the  defendant,  and  in  delivering  wheat, 
and  in  issuing  the  receipt  mentioned,  the  parties  contracted  with 
reference  to  such  usage  and  custom,  and  such  receipt  was  based  upon 
and  controlled  thereby. 

3.  That  on  the  day  of  August,  1899,  the  plaintiff  delivered  to 
the  defendant,  at  its  mill,  2,092  bushels  and  12  pounds  of  merchantable 
wheat,  and  received  from  it  the  customary  load-checks  therefor ;  that 
such  wheat  was  delivered  to  and  accepted  by  the  defendant  under 
and  in  accordance  with  such  usage  and  custom,  and  not  otherwise, 
and  the  same  constituted  and  was  the  contract  in  reference  thereto; 
that  no  part  of  the  wheat  so  delivered  was  ever  returned  to  the 
plaintiff  or  paid  for  in  money  or  in  kind,  except  55  bushels  and  12 
pounds,  paid  in  mill-feed  and  flour,  leaving  a  balance  of  2,037  bushels 
due  the  plaintiff;  that  soon  after  receiving  the  wheat  the  defendant 
sold  and  disposed  of  the  same  and  applied  the  proceeds  to  its  own 
use ;  that  on  August  17,  1901,  the  plaintiff  tendered  to  defendant  the 
requisite  amount  for  storage  and  for  sacks,  and  demanded  the  deliv- 
ery to  him  of  2,037  bushels  of  merchantable  wheat,  or  the  payment 
of  fifty  cents  a  bushel,  the  value  thereof,  but  defendant  refused  to  do 
either. 

Wherefore,  the  plaintiff  prays  judgment  against  the  defendant  for 
the  value  of  said  wheat  retained  by  the  defendant  and  undelivered 
as  aforesaid,  amounting  to  $  ,  and  for  interest  thereon  from 

the  date  of  the  demand  aforesaid,  and  for  costs. 

W.  T.  Slater,  and 
"W.  M.  Kaiser, 
[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  620 — For  breach  of  contract  to  furnish   engine  and  engineer  at 
opening  of  threshing  season. 

(Adapted  from  Hoskins  v.  Scott,  52  Ore.  271;  96  Pac.  1112.) 
[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 
That  on  the  day  of  ,  19     ,  the  defendant,  for  a  valuable 

consideration,  agreed  with  the  plaintiff  to  furnish  plaintiff  an  engine 
and  a  competent  engineer  to  run  plaintiff's  machine  purchased  by 
plaintiff  from  defendant,  during  the  threshing  season  of  the  year 
1906,  commencing  on  or  about  the  day  of  ,  and  ending  on 


Ch.  LXXXV.]       COMPLAINTS   [OR  PETITIONS].— FORMS.  1253 

or  about  the  day  of  in  said  year ;  that  the  plaintiff, 

relying  on  said  promise  of  the  defendant,  made  the  necessary  arrange- 
ments, including  procurement  of  the  complement  of  men  necessary  to 
begin  and  carry  on  successfully  threshing  during  and  for  said  season, 
and  made  all  necessary  arrangements  at  the  opening  of  said  season, 
pursuant  to  said  contract  and  promise  of  the  defendant;  that  the 
plaintiff  performed  in  all  respects  said  contract  upon  his  part,  and 
notified  defendant  in  due  time  that  plaintiff  expected  defendant  to  be 
ready  with  the  engine  and  engineer  at  the  opening  of  the  threshing 
season,  as  promised,  so  that  plaintiff  could  engage  in  threshing  dur- 
ing said  season,  and  demanded  of  defendant  that  he  furnish  the 
engine  and  engineer  according  to  their  contract,  which  defendant 
neglected  and  refused  to  do  during  said  season  or  at  any  time,  to  the 
damage  of  the  plaintiff  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  $  damages  and  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 

FORM   No.  621 — For  breach  of  contract  in  furnishing  irrigating  plant. 
(In  Irvine  v.  Rapp,  9  Cal.  App.  375;  99  Pac.  409.) 

[Title  of  court  and  cause.] 

1-8.  [After  introductory  part,  averments  of  copartnership,  of 
agreement  to  furnish  pumping  plant,  and  breach  of  said  agreement, 
the  complaint,  with  reference  to  defendants'  default  and  the  dam- 
ages occasioned  by  said  breach,  proceeds  as  follows :] 

9.  *  *  *  That  defendants  have  wholly  failed,  neglected,  and 
refused,  and  do  now  refuse,  to  remedy  such  defects,  or  to  supply  such 
omitted  parts,  or  to  perform  their  said  contract  in  these  respects ;  that 
plaintiff  was  thereby,  by  the  acts  of  defendants,  compelled  to  employ 
other  parties  to  remedy  such  defects  and  supply  such  omitted  parts, 
all  at  a  necessary  cost  to  plaintiff  in  the  premises  of  the  sum  of  $250. 

10.  That  solely  by  reason  of,  and  as  the  immediate  and  direct  and 
necessary  result  of,  the  said  failure  of  defendants  to  perform  their 
said  contract  plaintiff  was  prevented  from  irrigating  said  alfalfa  or 
any  thereof  during  the  said  months  of  June  and  July,  1900,  or  at  any 
time  thereafter ;  that  in  consequence  all  said  alfalfa  died  and  was  lost 
to  the  plaintiff;  that  as  a  further  and  necessary  consequence  of  said 
failure  of  defendants  to  perform  their  said  contract  in  the  time  stipu- 
lated in  said  agreement,  plaintiff  suffered  a  loss  of  a  subsequent  and 


1254  BREACH   OF   CONTRACTS  OF   SALE,   ETC.  [Tit.  XH. 

second  crop  of  alfalfa,  all  of  which  alfalfa  could  have  been  saved 
and  crops  harvested  if  defendants  had  duly  performed  their  said 
contract ;  that  plaintiff  was  damaged  by  the  loss  of  said  two  crops  of 
alfalfa  in  the  sum  of  $2,577.50. 

Wherefore,  plaintiff  prays  judgment  against  defendants  in  the  sum 
of  $2,827.50,  together  with  interest  thereon  and  costs,  and  for  such 
other  and  further  relief  as  shall  appear  to  be  just. 

George  W.  Towle, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  622 — Upon  contract  to  purchase  stock  in  default  of  corporation  to 
pay  dividends. 

(Adopted  from  Marino vich  v.  Kilburn,  153  Cal.  638;  96  Pac.  303.  y 

[Title  of  court  and  cause.] 

Comes  now  the  above-named  plaintiff,  and,  complaining  of  the 
above-named  defendant,  for  cause  of  action  alleges : 

1.  That  heretofore,  to  wit,  on  the  21st  day  of  July,  1903,  defendant 
entered  into  a  contract  in  writing  with  plaintiff,  wherein  defendant 
agreed  that,  if  the  plaintiff  would  pay  to  the  Watsonville  Transporta- 
tion Company,  a  corporation,  in  full  for  50  shares  of  its  capital  stock, 
at  the  rate  of  $60  per  share,  defendant  would,  in  the  event  of  the  non- 
payment by  said  company  of  an  annual  dividend  of  not  less  than  3% 
per  cent  upon  the  said  purchase  price  of  said  stock,  pay  to  plaintiff 
said  sum,  to  wit,  3^2  per  cent  upon  said  purchase  price,  and,  further, 
*  *  *  would  thereupon  purchase  said  stock  at  any  time,  upon 
the  request  of  plaintiff,  and  after  the  default  of  the  company  in  pay- 
ing said  dividend;  that  by  said  agreement  defendant  further  prom- 
ised to  pay  plaintiff  for  said  shares  of  stock,  in  the  event  of  said 

i  The  complaint  in  this  action,  as  the  same  appears  from  the  records  thereof, 
shows  that  prior  to  the  date  of  the  agreement  to  repurchase  the  stock  in  the 
event  of  default  of  the  corporation  to  pay  a  dividend  or  dividends  the  plaintiff 
had  agreed  with  the  company  to  purchase  the  fifteen  shares  of  stock,  and  had 
made  a  partial  payment  thereon  of  $750,  and  that,  to  induce  the  plaintiff  to  pay 
the  balance  upon  said  obligation,  the  agreement  aforesaid  was  made.  The  court 
in  reversing  the  case  stated  that  there  was  no  sufficient  consideration  for  the 
agreement  on  the  part  of  the  defendant  to  buy  the  stock  and  pay  the  plaintiff 
$3,000  therefor  in  the  event  of  the  default  of  the  corporation  to  pay  dividends, 
inasmuch  as  it  had  already  become  the  plaintiff's  duty  to  perform  the  obligation 
which  he  had  entered  into  and  upon  which  he  had  made  a  partial  payment;  and 
held,  further,  that  the  consideration  of  the  original  contract  could  not  attach  to 
the  subsequent  promise.  (The  form  here  given  assumes  an  original  contract  upon 
the  strength  of  defendant's  promise  to  repurchase,  and  the  averment  showing  that 
the  party  making  the  promise  to  repurchase  was  a  stockholder  in  the  company 
Implies  a  consideration):  Marinovich  v.  Kilburn,  153  Cal.  638,  96  Pac.  303,  304. 


Ch.  LXXXV.]       COMPLAINTS   [OR  PETITIONS].— FORMS.  1255 

default,  the  sum  of  $60  per  share,  cash,  upon  the  delivery  of  the  same 
to  defendant  and  of  the  certificate  therefor  properly  endorsed  by 
plaintiff  to  defendant. 

2.  That  thereupon,  and  on  said  21st  day  of  July,  1903,  plaintiff  paid 
to  said  company,  the  sum  of  $3,000,  the  purchase  price  of  said  shares 
of  stock,  and  thereupon  received  a  certificate  therefor;  *  *  * 
that  said  purchase  price  was  paid  in  contemplation  of  and  pursuant 
to  said  written  promise  of  defendant,  he  being  at  and  before  said 
time  a  stockholder  in  and  officer  of  said  corporation. 

3.  [Here  follows  averment  as  to  the  default  of  said  company  in 
the  payment  of  any  dividend.] 

4.  That  on  the  30th  day  of  March,  1905,  plaintiff  requested 
defendant  to  purchase  said  50  shares  of  said  capital  stock  of  the 
Watsonville  Transportation  Company,  and  to  pay  him  therefor  the 
sum  of  $60  per  share,  as  theretofore  agreed  as  aforesaid,  and  at  said 
time  tendered  to  defendant  the  said  certificate  of  stock  to  said  Wat- 
sonville Transportation  Company  for  said  50  shares  of  capital  stock 
thereof  properly  endorsed  to  defendant  by  the  plaintiff. 

5.  That  defendant  has  wholly  failed,  neglected,  and  refused  to 
accept  said  certificate  of  stock,  or  to  pay  the  said  purchase  price  of 
said  shares  of  stock,  at  the  rate  of  $60  per  share,  or  at  any  other  rate 
whatever,  and  that  said  shares  of  stock  are,  and  each  of  them  is, 
without  any  value  whatever;  that  on  account  of  the  defendant's 
refusal  to  purchase  the  same  as  agreed  upon,  plaintiff  has  sustained 
damages  in  the  sum  of  $3,000. 

Wherefore,  plaintiff  prays  judgment  of  this  court  against  defend- 
ant for  $3,000  and  costs  of  suit. 

Charles  M.  Cassin, 
[Verification.]  Attorney  for  plaintiff. 

FORM   No.  623 — For  breach  of  an  option  contract  to  repurchase  stock. 
(In  Raiche  v.  Morrison,  37  Mont.  244;  95  Pac.  1061.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  on  the  18th  day  of  September,  1903,  in  consideration  of  the 
sum  of  $1,000  paid  by  the  plaintiff  to  the  defendant,  the  defendant 
sold  and  delivered  to  the  plaintiff  twenty  shares  of  the  capital  stock 
of  the  Minneapolis  and  Montana  Live  Stock  Company,  and  agreed 


1256  BREACH   OF   CONTRACTS   OF   SALE,   ETC.  [Tit.  XII. 

with  the  plaintiff  to  repurchase  the  said  shares  of  stock  from  the 
plaintiff  at  the  expiration  of  three  years  from  the  said  date  for  the 
sum  of  $1,720,  this  latter  agreement  being  a  memorandum  as  follows : 
"Harlem,  Mont.,  Sept.  18,  1903.  Three  years  from  the  date  hereof  I 
agree  to  pay  J.  H.  Raiche  $1,720  for  20  shares  in  the  Minneapolis  and 
Montana  Live  Stock  Company.  J.  R.  Morrison.  Witnesses,  Hunter 
Hardaway  and  John  R.  Ressler. " 

That  the  plaintiff  thereafter,  to  wit,  on  the  day  of  , 

1906,  notified  the  defendant  he  would  accept  the  option  to  repur- 
chase, and  at  the  expiration  of  the  period  of  the  said  three  years  ten- 
dered to  the  defendant  the  said  certificate  representing  the  twenty 
shares  of  said  stock  duly  endorsed,  and  an  assignment  of  the  said 
certificate  to  the  defendant,  and  thereupon  demanded  $1,720,  the 
price  agreed  upon,  but  that  the  defendant  refused  to  accept  the  said 
or  any  certificate,  and  declined  to  pay  the  defendant  the  said  sum  of 
$1,720  or  any  part  thereof;  that  by  reason  thereof  the  plaintiff  has 
been  damaged  in  the  sum  of  $1,720. 

Wherefore,  the  plaintiff  prays  judgment  for  the  said  sum  of  $1,720, 
and  interest  thereon,  and  the  costs  of  suit. 

Sands  &  O'Keefe, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  624 — For  breach  of  contract  for  purchase  of  fruit. 

(In  Ellsworth  v.  Knowles,  8  Cal.  App.  630;  97  Pac.  690.) 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendants,  and  for  cause  of  action  alleges : 

1.  That  W.  G.  Knowles  and  Frank  J.  Knowles  were  on  the  5th  day 
of  July,  1905,  and  ever  since  have  been,  copartners  doing  business 
under  the  firm  name  and  style  of  Knowles  Brothers. 

2.  That  on  or  about  the  6th  day  of  July,  1905,  plaintiff  agreed  with 
said  copartnership,  to  buy  of  it,  and  said  copartnership  agreed  to  sell 
to  the  plaintiff,  and  to  deliver  to  him,  150  12yo-pound  kilo  boxes  of 
choice  apricots  at  five  and  seven-eighths  cents  per  pound,  boxed, 
less  five  per  cent,  the  buyer  to  furnish  lace  paper  with  usual  allow- 
ance, labels  to  be  furnished  by  buyer  free ;  that  said  apricots  under 
said  contract  were  to  be  delivered  by  said  copartnership  to  said 
plaintiff  in  the  month  of  August,  1905,  f.  o.  b.  San  Jose,  Santa  Clara 
County,  California,  sight  draft  for  the  purchase  price  of  said  apricots 
to  accompany  bill  of  lading. 


Ch.  LXXXV.]       COMPLAINTS   [OR  PETITIONS].— FORMS.  1257 

3.  That  the  time  of  said  contract  for  the  delivery  of  said  apricots 
has  elapsed,  and  that  plaintiff  has  always  been  ready,  able,  and  will- 
ing to  furnish  said  lace  paper  and  labels,  and  has  many  times  prior 
to  the  time  for  the  delivery  of  said  apricots  under  said  agreement  of 
sale  offered  to  deliver  said  lace  paper  and  labels  in  accordance  with 
said  agreement,  and  has  always  been  ready,  willing,  and  able  to 
receive  said  apricots  and  to  pay  for  them  at  the  price  aforesaid  upon 
the  presentation  of  sight  draft  for  the  purchase  price  attached  to  the 
bill  of  lading  of  said  apricots,  according  to  the  terms  of  said  agree- 
ment, of  all  of  which  the  said  copartnership  had  notice. 

4.  That  the  said  copartnership  has  not  delivered  said  apricots,  or 
any  part  thereof,  to  the  plaintiff. 

5.  That  in  the  month  of  August,  1905,  and  within  such  period 
after  the  time  agreed  upon  as  aforesaid  for  the  delivery  of  said  fruit 
as  would  have  sufficed  for  plaintiff  to  purchase  the  same  quantity  of 
fruit  of  like  quality  and  kind,  plaintiff  would  have  been  required  to 
pay  in  the  market  of  said  Santa  Clara  County  the  sum  of  $1,442.89 
more  for  said  fruit  than  said  contract  price,  and  said  fruit  at  the  said 
time  agreed  upon  for  the  delivery  of  the  same,  and  within  said  period 
thereafter,  would  have  been  worth  to  plaintiff  the  sum  of  $1,442.89 
more  than  said  contract  price. 

6.  That  by  reason  of  the  premises  the  plaintiff  has  thereby  sus- 
tained damages  in  the  sum  of  $1,442.89. 

And  for  another,  further,  and  separate  cause  of  action,  plaintiff 
alleges : 

[Here  follows  a  repetition  of  the  allegations  in  the  first  cause  of 
action,  except  that  the  second  cause  is  upon  a  contract  of  a  later  date, 
to  wit,  July  25,  1905,  for  an  additional  1,250  25-pound  boxes  of  fruit 
at  six  and  three-ninths  cents  per  pound,  and  1,250  25-pound  boxes  at 
seven  and  one-eighth  cents  per  pound,  less  brokerage,  etc.  The  dam- 
ages for  breach  of  contracts  of  July  25,  1905,  are  alleged  to  be  the 
sum  of  $1,375.] 

Wherefore,  plaintiff  prays  judgment  for  the  sum  of  $2,817.89  and 

for  costs  of  suit. 

L.  B.  Archer,  and 
Wm.  P.  Veuve, 
[Verification.]  Attorneys  for  plaintiff. 


J258  BREACH   OF   CONTRACTS   OF   SALE,   ETC.  [Tit.  XII. 

FORM   No.  625— Averments  as  to  damages  for  breach  of  contract  to  purchase 

oil. 
(In  Central  Oil  Co.  v.  Southern  Refining  Co.,  154  Cal.  165;  97  Pac. 

177.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 
1-6.   [After  preliminary  averments,  as  to  the  execution  of  the  con- 
tract to  purchase,  breach  of  the  agreement  by  the  defendant,  offer  to 
perform  on  the  part  of  the  plaintiff,  etc.,  the  averments  as  to  damages 
are  set  forth  as  follows:] 

7.  That  under  the  contract  of  purchase  made  by  the  plaintiff  with 
the  defendant,  the  defendant  agreed  to  pay  for  said  oil  at  the  rate  of 
seventy  cents  per  barrel  of  forty-two  gallons  each;  that  the  freight 
on  oil  of  the  character  agreed  to  be  sold  under  said  contract  from 
Whittier,  Los  Angeles  County,  California,  (the  contract  providing  for 
sale  of  the  oil  at  the  wells,  at  Whittier,  in  said  county,)  to  Los 
Angeles  City,  California,  where  the  same  was  to  be  delivered,  was  at 
all  times  since  said  contract  was  made,  ten  cents  per  barrel;  that 
since  said  contract  of  sale  was  made  and  said  oil  sold  by  the  plaintiff 
to  the  defendant,  the  price  of  oil  of  the  kind  and  character  described 
in  said  agreement  has  grown  less,  and  has  varied  from  time  to  time. 

8.  That  when  the  defendant  failed  and  refused  to  accept  the  5,000 

barrels  of  oil  agreed  to  be  taken  by  the  defendant  during  the  month 

of  August,  1904,  the  plaintiff  sought  to  sell  the  same  on  the  market, 

but  was  unable  to  sell  the  same  at  any  time  before  the  commencement 

of  this  action ;  that  the  plaintiff  is  informed  and  believes,  and  upon 

such  information  and  belief  alleges,  that  the  value  to  the  plaintiff 

and  the  market  price  and  value  of  the  oil  sold  by  the  plaintiff  to  the 

defendant  under  the  contract  set  out  in  the  complaint,  and  which  oil 

the  defendant  failed  and  refused  to  receive  and  accept  during  the 

month  of  August,  1904,  was  the  sum  of  thirty  cents  per  barrel  at  the 

place  of  delivery  and  at  the  time  when  the  same  was  to  be  delivered ; 

[here  follows  similar  averments  with  reference  to  oil  which  was  to  be 

delivered  during  the  months  of  February,  March,  April,  May,  and 

June,  1905;]  that  the  plaintiff  is  informed  and  believes,  and  therefore 

alleges,  that  the  profit  which  would  accrue  to  the  plaintiff  upon  the 

15,000  barrels  of  oil  which  was  agreed  to  be  taken  by  the  defendant 

during  the  months  of  April,  May,  and  June,  1905,  would  amount  to 

the  sum  of  $4,500. 


Ch.  LXXXV.]  ANSWERS.— FORMS.  1250 

9.  That  by  reason  of  the  failure,  refusal,  and  neglect  of  the  defend- 
ant to  receive  and  accept  the  oil  so  purchased  by  the  defendant  from 
the  plaintiff,  and  to  carry  out  the  contract  entered  into  between  the 
plaintiff  and  defendant,  as  hereinbefore  set  forth,  plaintiff  has  been 
damaged  in  the  sum  of  $9,000. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the  sum 
of  $9,000,  and  for  costs  of  suit. 

Percy  R.  Wilson, 

[Verification.]  Attorney  for  plaintiff. 

§315.     ANSWERS. 

FORM   No.  626 — Defense  of  non-compliance  with  contract. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Defendant  denies  that  said  work  was  completed  in  a  good  or  work- 
manlike manner,  and  alleges  that  said  work  was  deficient  in  this,  that 
[state  in  what  manner  the  work  was  deficient]  ;  and  the  same  was  not 
completed  on  or  before  the  day  limited  therefor  in  the  contract  set 
forth  in  the  complaint  [or  petition],  but  was  then  and  from  thence 
to  the  beginning  of  this  action  incomplete  and  unfinished. 

[Etc.] 

FORM   No.  627 — Defense  of  coverture  of  the  defendant. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

That  at  the  time  of  the  execution  of  the  note,  as  alleged  in  the 
complaint  herein,  this  defendant  was,  and  still  is,  the  wife  of  one 
D.  E. ;  that  she  did  not  then  have,  nor  has  she  now,  any  separate 
property  or  business  of  any  nature.  [Or,  in  ease  she  has  a  separate 
estate  or  business,  allege  that  the  said  supposed  contract  did  not  in 
any  way  concern  such  separate  property  or  business.] 

[Concluding  part.] 

FORM   No.  628 — Defense  of  breach  of  contract  to  feed  and  care  for  animals, 
and  cross-complaint  for  damages. 

(In  Calland  v.  Nichols,  30  Neb.  532,  534;  46  N.  W.  631.) 
[Title  of  court  and  cause.] 

The  defendants,  for  answer  and  cross-complaint  to  plaintiff's  peti- 
tion: 


1260  BREACH   OF   CONTRACTS   OF   SALE,   ETC.  [Tit.  XII. 

1.  Admit  that  on  the  day  of  ,  1887,  ,  the  plaintiff, 
made  and  entered  into  a  contract  with  defendants  to  take  100  head  of 
cattle  or  more,  not  to  exceed  200  head,  and  to  keep  them  in  good 
condition,  give  them  good  care  and  plenty  of  food,  and  deliver  them 
to  defendants,  or  order,  in  the  spring  of  1888,  and  at  a  time  when 
they  could  live  well  on  grass,  for  the  sum  of  $4.50  each,  to  be  paid 
for  in  full  by  the  defendants  on  delivery  of  the  cattle  in  good  condi- 
tion in  the  spring  of  1888. 

2.  Aver  that  on  the  7th  day  of  September,  1887,  the  defendants 
delivered  to  the  plaintiff,  and  the  plaintiff  received  from  the  defend- 
ants, 123  head  of  cattle  in  good  health  and  condition,  to  be  cared  for, 
properly  fed,  and  delivered  to  defendants  in  good  condition  in  the 
spring  of  1888,  according  to  the  terms  and  provisions  of  said  con- 
tract. 

3.  That  plaintiff  then  received  said  123  head  of  cattle  upon  the 
above  conditions,  and  undertook  to  use  due  and  proper  care  in  the 
management  of  said  cattle,  to  properly  feed,  water,  and  shelter 
the  same,  and  deliver  them  in  good  condition  to  the  defendants  at 
the  time  therein  stated,  but  the  plaintiff,  not  regarding  his  promise 
and  undertaking,  did  not  and  would  not  take  proper  care  of  said 
cattle,  and  did  not  properly  feed,  water,  or  shelter  the  same;  and 
when  he  was  requested  to  redeliver  the  said  123  head  of  cattle  at 
the  time  mentioned  in  said  agreement,  delivered  only  74  of  said 
cattle,  and  he  has  failed  and  neglected  to  deliver  49  head  or  any 
number  thereof,  and  has  not  paid  the  value  thereof,  amounting  to 
the  sum  of  $980,  though  often  requested  so  to  do;  but,  on  the  con- 
trary, the  plaintiff  so  negligently  and  carelessly  conducted  himself 
with  respect  to  said  cattle,  and  took  so  little  care  of  them,  and  failed 
to  properly  feed,  water,  and  shelter  them,  that,  by  and  through  the 
said  negligence  and  improper  conduct  of  the  plaintiff  and  his  serv- 
ants in  that  behalf,  the  said  123  head  of  cattle  all  became  poor,  thin 
in  flesh,  and  weak  in  condition,  and  49  head  of  said  cattle,  from  want 
of  proper  food,  care,  and  attention  on  the  part  of  the  plaintiff,  and 
while  the  same  were  in  his  custody,  died,  to  the  defendants'  damage 
in  the  sum  of  $980. 

4.  Defendants  further  allege  that,  in  order  to  prevent  the  whole  of 
said  cattle  from  dying  of  starvation  and  exposure,  they  were  com- 
pelled to  and  did  incur  great  expense,  to  wit,  $199,  in  furnishing  said 
cattle  with  proper  care  and  attention  while  the  same  were  in  plaint- 


Ch.  LXXXVJ  JUDGMENT,  ETC.— ANNOTATIONS.  1261 

iff's  possession  ander  the  contract  aforesaid;  that  he  was  under  obli- 
gation to  furnish  the  same,  but  failed,  neglected,  and  refused  so  to 
do,  to  defendants'  damage  in  the  sum  of  $199. 
"Wherefore,  [etc.]. 

§316.     JUDGMENT  [OR  DECREE]. 

FORM    No.  629 — For  plaintiff. — Damages  for  breach  of  contract  to  purchase. 

(In  Central  Oil  Co.  of  L.  A.  v.  Southern  Refining  Co.,  154  Cal.  165; 

97  Pac.  177.) 

[Title  of  court  and  cause.] 

[After  recitals  as  to  appearances,  hearing,  submission,  filing  of 
findings,  etc. :] 

Wherefore,  by  reason  of  the  law  and  findings  aforesaid,  it  is 
ordered,  adjudged,  and  decreed,  that  the  Central  Oil  Company  of 
Los  Angeles,  the  plaintiff,  do  have  and  recover  of  and  from  the 
Southern  Refining  Company,  the  defendant,  the  sum  of  $6,500,  with 
interest  thereon  at  the  rate  of  seven  per  cent  per  annum  from  the 
date  hereof  until  paid,  together  with  the  plaintiff's  costs  and  dis- 
bursements incurred  in  this  action,  amounting  to  the  sum  of  $25.50. 

Dated  October  24,  1906.  G.  A.  Gibbs, 

Judge  of  Superior  Court. 

For  substance  of  complaint  in  action  to  recover  damages  for  alleged  breach 
of  contract  of  sales,  see  Kirchman  v.   Tuffli  Bros.   (Ark.),  122  S.  W.  239. 

Form  of  demurrer  in  an  action  for  breach  of  contract:  Ford  v.  Gregson,  7  Mont. 
«9,  95,  14  Pac.  659. 

Form  of  answer  in  an  action  for  the  recovery  of  money  paid  for  the  purchase 
of  lots  under  an  agreement  to  the  effect  that  each  member  of  an  association, 
composed  of  the  plaintiff  and  the  defendants,  was  to  pay  two  dollars  a  week, 
and  at  drawings,  held  each  week,  one  of  the  members  was  to  receive  a  lot: 
Branham  v.  Stallings,  21  Colo.  211,  212,  40  Pac.  396,  52  Am.  St.  Rep.  213. 

§317.     ANNOTATIONS. — Breach  of  miscellaneous  contracts  of  sale. 

1.  Basis  of  contract  liability. 

2.  Complaint  for  breach  of  contract  of  sale. 

3.  On   agreement   to   furnish   laborers. 

4.  Option  agreement. — What  complaint  must  set  forth. 
6,  6.  Entire   and  severable   contracts — Distinctions. 

7.  Test  of  divisibility  of  contracts. 
8,  9.  Actions  upon  instalment  contracts. — When  judgment  is  a  bar. 

10.  Defense  of  non-delivery  of  contract. 

11.  Agreement  to  pursue  independent  measures  of  redress. — Defense  based  upon. 

1.   Basis    of    contract     liability. — Ordi-  but    there    are    some    exceptions    to    this 

narily,   there  must  be  a  request  from  a  rule,     as    where    a    person    is    under    a 

person  authorized  to  make  the  same  to  moral  and  legal  obligation  to  do  an  act, 

constitute  a  basis   for  contract  liability;  and  another  does  it  for  him  under  such 


12G2 


BREACH  OF  CONTRACTS  OF  SALE,  ETC. 


[Tit.  XII. 


circumstances  of  urgent  necessity  that 
humanity  and  decency  admit  of  no  time 
for  delay.  In  such  a  case  it  is  sufficient 
to  allege  the  facts  showing  the  imme- 
diate necessity  for  the  services  rendered 
and  the  impossibility  of  making  a  prece- 
dent request  or  promise  to  pay:  Com- 
missioners of  Sheridan  County  v.  Done- 
brink,  15  Wyo.  342,  89  Pac.  7,  9,  9  L. 
R.  A.  (N.  S.)  1234,  (against  county  com- 
missioners to  recover  for  surgical  and 
medical  services  rendered  an  indigent 
person). 

2.  Complaint  for  breach  of  contract  of 
sale. — A  complaint  in  an  action  for  dam- 
ages for  breach  of  an  alleged  contract 
has  been  held  sufficient  where  the  ma- 
terial allegations  are,  in  substance:  That 
on  the  16th  day  of  October,  at  Wells- 
ville,  Utah,  the  plaintiffs  (appellants) 
and  defendants  (respondents)  entered 
into  a  certain  written  contract,  In  words 
and  figures  as  follows:  "Oct.  16,  '03.  I 
hereby  agree  to  sell  and  deliver  to 
Bailey  &  Sons  at  their  place  of  business 
in  Logan  City,  Utah,  125  bushels  of 
lucerne  seed  at  the  rate  of  $.10%  per 
pound  after  same  seed  is  recleaned;  said 
seed  to  be  in  said  David  &  Andrew 
Leishman's  sacks.  [Signed]  Andrew 
Leishman.  David  Leishman."  That  by 
the  terms  of  said  contract  the  defend- 
ants had  agreed  to  deliver  the  said  seed 
to  the  plaintiffs  at  said  Logan  City 
within  a  reasonable  time;  that  ten  days 
or  less  after  the  making  of  said  con- 
tract was  a  reasonable  time  within 
which  to  deliver  the  said  seed,  and  the 
defendants  could  have  delivered  the 
same  to  plaintiff  within  said  time  had 
they  chosen  to  do  so;  that  plaintiffs 
have  at  all  times  been  able  and  willing 
to  purchase  from  defendants  said  seed 
at  the  rate  of  10%  cents  per  pound  as 
expressed  in  the  memorandum  of  agree- 
ment; that  plaintiffs  at  all  times  had 
been  ready,  willing,  and  able  to  pay 
defendants  said  10%  cents  per  pound  for 
said  seed  upon  the  delivery  and  reclean- 
ing  thereof;  that  defendants  have 
wholly  failed  and  neglected  to  deliver 
said  seed  or  any  part  thereof  to  plaint- 
iffs, and  have  refused  to  deliver  said 
seed  or  any  part  thereof,  notwith- 
standing that  the  plaintiffs  on  the  7th 
day  of  November,  1903,  and  at  divers 
certain  times  prior  thereto,  demanded 
of  the  defendants  that  they  deliver  the 
said  seeds  in  accordance  with  the  terms 
of  the  said  agreement  between  the  said 


parties;  that  by  reason  of  the  failure 
to  deliver  said  seeds  plaintiffs  allege 
that  they  have  been  damaged  in  the  sum 
of  $150,  for  which  they  demand  judg- 
ment, etc.:  Bailey  v.  Leishman,  32  Utah 
123,  89  Pac.  78,  79,  13  Am.  &  Eng.  Ann. 
Cas.  1116  (for  damages  for  breach  of 
contract). 

3.  On  agreement  to  furnish  laborers. — 
In  an  action  for  damages  for  breach  of 
a  contract  against  a  company  for  neg- 
ligently failing  to  keep  its  promise,  in 
that  it  did  not  furnish  experienced  labor- 
ers in  time,  and  in  that  it  did  not  prop- 
erly instruct  the  laborers  actually  fur- 
nished, the  complaint  is  insufficient 
where  it  is  impossible  to  say  what,  if 
any,  portion  of  the  damages  resulted 
from  the  fault  of  the  company,  and 
what  portion  from  the  fault  of  the  plaint- 
iff himself;  and  this  especially  where  the 
complaint  is  not  of  the  failure  of  the 
company  to  instruct  plaintiff's  laborers 
but  only  of  its  failure  to  properly  in- 
struct them.  It  is  elementary  that  in 
order  to  maintain  an  action,  the  com- 
plaint must  set  forth  facts  which,  if 
true,  put  the  defendant  in  the  wrong: 
Smith  v.  Billings  Sugar  Co.,  37  Mont. 
128,  94  Pac.  839,  841,  15  L.  R.  A.  (N.  S.) 
837,  (for  damages  for  breach  of  con- 
tract). 

4.  Option  agreement. — What  complaint 
must  set  forth. — The  complaint  in  an 
action  for  damages  for  a  breach  of  con- 
tract to  sell  under  an  option  agreement 
should  set  forth  the  option,  alleging  its 
execution  to  the  plaintiff,  with  aver- 
ments that  the  plaintiff  had  elected  to 
take  the  land  under  the  option;  the  value 
of  the  land;  the  refusal  of  the  defend- 
ant to  comply  with  the  terms  of  the 
option;  that  the  defendant  had,  before 
the  expiration  of  the  option,  sold  the 
land  to  a  third  party,  or  that  he  had 
otherwise  incapacitated  himself  from 
performing  the  contract  on  his  part;  the 
damages  suffered  by  the  plaintiff  by  rea- 
son of  the  failure  and  refusal  of  the 
plaintiff  to  comply  with  the  option: 
Palmer  v.  Clark,  52  Wash.  345,  100  Pac. 
749.  (The  text  of  this  note  is  not  taken 
from  the  decision  proper;  it  is  rather 
an  adaptation  from  a  preliminary  state- 
ment by  the  court.) 

5.  Entire  and  severable  contracts. — As 
a  general  rule,  it  may  be  said  that  a 
contract  is  entire  when  by  its  terms, 
nature,  and  purpose  it  contemplates  and 
Intends    that    each    and    all   of   its    parts 


Ch.  LXXXV.] 


ANNOTATIONS. 


1263 


and  the  consideration  shall  be  common 
each  to  the  other  and  interdependent. 
On  the  other  hand,  it  is  the  general  rule 
that  a  severable  contract  is  one  in  its 
nature  and  purpose  susceptible  of  divi- 
sion and  apportionment.  The  question 
whether  a  given  contract  is  entire  or 
severable  is  very  largely  one  of  inten- 
tion, which  intention  is  to  be  determined 
from  the  language  the  parties  have  used 
and  the  subject-matter  of  the  agree- 
ment. The  divisibility  of  the  subject- 
matter  or  the  consideration  is  not  neces- 
sarily conclusive,  though  of  aid  in 
arriving  at  the  intention.  Where  it  rea- 
sonably appears  from  the  language  of 
the  contract  or  from  its  terms  that  the 
parties  intended  that  a  full  and  com- 
plete performance  should  be  made  with 
reference  to  the  subject-matter  of  the 
contract  by  one  party  in  consideration 
of  the  obligation  of  the  other  party  the 
contract  is  said  to  be  entire.  It  is  very 
difficult  to  lay  down  a  rule  which  will 
apply  to  all  cases,  and  consequently 
each  case  must  depend  very  largely  on 
the  terms  of  the  contract  involved: 
Pacific  Timber  Co.  v.  "Windmill  Co.,  135 
Iowa  308,  112  N.  W.  771,  cited  in  Quar- 
ton  v.  American  Law  Book  Co.  (Iowa), 
121  N.  W.   1009,   1015. 

6.  As  to  the  distinction  between  an  en- 
tire and  an  apportionable  contract,  see 
Hildebrand  v.  American  Fine  Arts  Co., 
109  Wis.  171,  85  N.  W.  268,  53  L.  R.  A. 
826;  Tilton  v.  James  L.  Gates  L.  Co., 
140  Wis.  197,   121  Wis.   331,   334. 

7.  Test  of  divisibility  of  contracts. — 
If  a  contract  contains  language  which 
obligates  the  party  to  make  partial  pay- 
ments, then  it  is  divisible,  and  an  ac- 
tion may  be  maintained  on  the  instal- 
ments as  they  become  due  before  per- 
formance is  completed:  La  Coursier  v. 
Russell,  82  Wis.  265,  52  N.  W.  176; 
Clark  v.  Clifford,  25  Wis.  597;  Tilton  v. 
James  L.  Gates  L.  Co.,  140  Wis.  197, 
121  N.  W.  331,"  334. 


8.  Actions  upon  Instalment  contracts. 
— When  payments  of  money  are  to  be 
made  periodically,  separate  actions  may 
be  maintained  In  succession  for  instal- 
ments as  they  mature  subject  to  this 
provision:  All  sums  due  when  an  ac- 
tion is  begun  must  be  included  in  it: 
Puckett  v.  National  Ann.  Assn.,  134  Mo. 
App.  501,  114  S.  W.  1039,  1041;  Union 
R.  Co.  v.  Traube.  59  Mo.  355,  362;  Adler 
v.  Railroad,  92  Mo.  242,  4  S.  W.  917; 
Kerr  v.  Simmons,  9  Mo.  App.  376;  Priest 
v.  Deaver,  22  Mo.  App.  276;  Williams  v. 
Kitchen,  40  Mo.  App.  604;  West  v. 
Moser,  49  Mo.  App.  201;  Miller  v.  Union 
Switch  etc.  Co.,  59  Hun  624,  13  N.  Y. 
Supp.  711;  Lorillard  v.  Clyde,  122  N.  T. 
41,  45,  25  N.  E.  292,  19  Am.  St.  Rep.  470. 

9.  If  all  payments  are  due,  and  if  one 
is  omitted,  a  judgment  in  the  case  will 
be  a  bar  to  a  second  action  to  recover 
it:  United  R.  etc.  Co.  v.  Traube,  59 
Mo.  355,  365;  Puckett  v.  National  Ann. 
Assn.,  134  Mo.  App.  501,  114  S.  W.  1039, 
1049;  Reformed  Dutch  Church  v.  Brown, 
54  Barb.  191. 

10.  Defense  of  non-delivery  of  con- 
tract.— Where  a  defense  is  based  upon 
non-delivery  of  a  written  contract, 
there  should  be  a  denial  of  execution 
under  it;  as  the  execution  of  an  instru- 
ment imports  its  delivery:  Hart  v. 
Harrison  etc.  Co.,  91  Mo.  414,  422,  4 
S.  W.  123;  North  St.  Louis  etc.  Assn. 
v.  Obert,  169  Mo.  507,  517,  69  S.  W. 
1044;  American  Copying  Co.  v.  Muleski, 
138   Mo.   App.   419,    122   S.   W.   384,    385. 

11.  Agreement  to  pursue  independent 
measures  of  redress. — Defense  based 
upon. — An  agreement  by  a  member  of 
a  benevolent  or  fraternal  society  to 
look  solely  to  the  society  for  redress 
of  grievances,  is  a  defense  in  an  action 
at  law  brought  by  a  member:  Robin- 
son v.  Templar  Lodge,  I.  O.  O.  F.,  117 
Cal.  370,  49  Pac.  170,  59  Am.  St.  Rep. 
193;  Berlin  v.  Eureka  Lodge  K.  P.,  132 
Cal.   294,   296,   64  Pac.   254. 


1264  WORK  AND  SERVICES.  [Tit.  XIL 

CHAPTER   LXXXVI. 

Work  and  Services. 

Page 

S  318.  Complaints  [or  petitions]    1264 

Form  No.  630.  For  work  and  services.    (Common  form.) 1264 

Form  No.  631.  To  recover  balance  upon  an  executed  contract 

for  services 1265 

Form  No.  632.  By  employee  against  employer,  for  failure  to 

fulfil  contract  of  employment 1265 

Form  No.  633.  By   employer   against  employee,   for   damages 

caused  by  inefficient  services 1266 

Form  No.  634.  Against  employee,  for  refusal  to  serve 1266 

Form  No.  635.  By  auctioneer,  upon  an  account  for  work  and 

services    1267 

Form  No.  636.  For  work,  etc.,  comprising  different  items 1267 

Form  No.  637.  For  services  rendered  by  busband  and  wife....     1268 
Form  No.  638.  By  machinist,  for  services  and  materials  fur- 
nished       1269 

Form  No.  639.  By  physician,  for  services 1269 

Form  No.  640.  On  builders'  contract,  with  claim  for  extra  work 

for  alterations  1270 

Form  No.  641.  By  attorneys,  for  services 1270 

Form  No.  642.  By  surviving  partner  of  a  law  firm,  to  recover 
conditional  and  reasonable  fee  for  legal  serv- 
ices.    (Pleading,  also,  stated  account.) 1271 

Form  No.  643.  By  parent,  for  services  of  minor  child 1273 

Form  No.  644.  Upon  individual  and  assigned  claims  for  serv- 
ices         1273 

|319.  Answers 1274 

Form  No.  645.  Defense  where  damages  exceed  alleged  value 
of  services. — Action  upon  assigned  claims  for 

reasonable  services  of  a  physician 1274 

Form  No.  646.  Defense  of  performance  1275 

Form  No.  647.  Denial  of  offer  to  serve 1276 

Form  No.  648.  Defense  of  special  denial,  and  accounting  and 

payment 1276 

§318.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  630 — For  work  and  services.     (Common  form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 
1.  That  the  defendant  is  indebted  to  this  plaintiff  in  the  sum  of 
$  ,  for  work  and  services  rendered  by  the  plaintiff  to  the  defend- 

ant, at  defendant's  instance  and  request,  as  a  clerk  [or  otherwise], 
between  the         day  of         ,  19     ,  and  the         day  of         ,  19     . 


Ch.  LXXXVL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1265 

2.  That  for  said  services  the  defendant  promised  to  pay  the  plaint- 
iff at  the  rate  of  $  per  month,  amounting  in  all  to  $  ,  [or, 
that  said  services  were  reasonably  worth  the  sum  of  $  ],  which 
became  due  on  the             day  of            ,  19     . 

3.  That  the  defendant  has  not  paid  the  same,  nor  any  part  thereof. 
Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 

sum  of  $  ,  and  plaintiff's  costs  of  suit. 

[Verification.]  A-  B"  Attorney  for  Pontiff. 

FORM   No.  631 — To  recover  balance  upon  an  executed  contract  for  services. 
(From  Donegan  v.  Houston,  5  Cal.  App.  626;  90  Pac.  1073.), 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendants,  and  alleges  : 

That  within  the  two  years  last  past,  he  did  grading  and  excavating 
for  the  defendants,  for  which  they  agreed  to  pay  him  the  sum  of 
$6,173;  that  the  defendants  have  paid  him  on  account  thereof  the 
sum  of  $3,938.75 ;  that,  although  often  requested  so  to  do,  they  have 
not  paid  him  any  further  sum  thereon;  that  there  is  now  due  and 
owing  the  plaintiff  from  defendants  the  sum  of  $2,234.25,  with  inter- 
est thereon  from  May  26,  1903. 

Wherefore,  plaintiff  prays  judgment  against  the  defendants  for 
the  sum  of  $2,234.25,  and  costs  of  suit. 

Chas.  H.  McFarland, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  632— By  employee  against  employer,  for  failure  to  fulfil  contract 
of  employment. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  on  the  day  of  ,  19  ,  plaintiff  and  defendant 
made  a  contract  of  employment,  the  terms  of  which  are  as  follows : 
[Here  state  the  contract  made.] 

2.  That  plaintiff  entered  upon  his  employment  under  said  contract, 
and  duly  performed  all  the  conditions  thereof  on  his  part  until  the 
defendant  refused,  as  hereinafter  mentioned,  to  permit  him  to  con- 
tinue further  in  his  employment  thereunder;  that  plaintiff  has  always 
been,  and  is  now,  ready  and  willing  to  perform  all  the  terms,  require- 
ments, and  conditions  of  said  contract  on  his  part,  and  has  heretofore 
[repeatedly]  offered  to  perform  the  same. 

.Tury's  PI. — 80. 


]266  WORK  AND  SERVICES.  [Tit.  XII. 

3.  That  the  defendant,  on  the  day  of  ,  19     ,  refused, 

and  has  ever  since  refused,  to  allow  plaintiff  to  perform  the  duties 
and  conditions  on  his  part  of  said  contract  of  employment,  and 
refuses  to  pay  him  thereunder  or  therefor,  to  plaintiff's  damage  in 
the  sum  of  $ 

[Concluding  part.] 

FORM   No.  633 — By  employer  against  employee,  for  damages  caused  by  inef- 
ficient services. 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  on  the  day  of  ,  19  ,  plaintiff  and  defendant 
made  a  contract  of  employment,  the  terms  of  which  are  as  follows: 
[Here  state  the  contract  made.] 

2.  That  to  procure  plaintiff  to  make  such  contract  of  employment 
with  defendant  the  defendant  stated  to  plaintiff  that  defendant  was. 
a  skilled  and  careful  worker,  to  wit,  a  [here  state  capacity  in 
which  the  defendant  was  to  serve]  ;  that,  confiding  in  the  truth  of 
such  representations,  plaintiff  entered  into  said  contract  of  employ- 
ment with  defendant,  and  intrusted  to  him  said  work  in  the  capacity 
of  [here  state]. 

3.  That  the  defendant  was  not  a  skilled  or  careful  worker,  in  this : 
[Here  state  in  what  the  defendant  was  inefficient]  ;  that  while  he 
was  in  the  employment  of  plaintiff  under  said  contract  defendant  so 
unskilfully  [and  carelessly]  performed  said  work  that  he  caused 
injury  to  the  plaintiff  in  the  following  respect,  to  wit :  [Here  specify 
damage  resulting  from  said  inefficient  acts  of  the  defendant] ,  to  the 
damage  of  plaintiff  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  $  , 

and  plaintiff's  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 

FORM   No.  634 — Against  employee,  for  refusal  to  serve. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  [As  in  paragraph  1  of  preceding  form.] 

2.  That  the  plaintiff  has  duly  performed  all  the  conditions  of  said 
contract  on  his  part  to  be  performed. 


Ch.  LXXXVL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1267 

3.  That  the  defendant  entered  upon  the  plaintiff's  service  on  said 
day,  but  afterwards,  on  the  day  of  ,  19     ,  abandoned  said 

service,  and  has  refused  to  serve  the  plaintiff,  as  aforesaid,  [or  the 
defendant  wholly  refused  to  enter  said  service,]  to  the  plaintiff's 
damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  635 — By  auctioneer,  upon  an  account  for  work  and  services. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  the  defendant  is  indebted  to  the  plaintiff  on  an  account  for 
work,  labor,  and  services  of  the  plaintiff  as  [auctioneer,  in  selling 
and  disposing  of,  and  endeavoring  to  dispose  of,  by  auction  and 
otherwise,  divers  goods,  chattels,  and  effects  for  defendant],  per- 
formed at  the  instance  and  request  of  the  defendant,  between  the 

day  of  ,  19     ,  and  the  day  of  ,  19     ,  in  the 

sum  of  $  ,  and  interest  thereon  from  the  day  of  ,  19     . 

2.  That  said  sum  has  not  been  paid,  nor  any  part  thereof. 
[Concluding  part.] 

FORM   No.  636 — For  work,  etc.,  comprising  different  items. 

(Adapted  from  Nelson  v.  Henrichsen,  31  Utah  191 ;  87  Pac.  267.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  defendant,  and  alleges : 

That  between  the  day  of  ,  19     ,  and  the  day  of 

,  19  ,  plaintiff,  at  defendant's  instance  and  request,  per- 
formed work  and  labor  as  a  miner,  in  and  upon  the  defendant's  min- 
ing claims  situated  at  ;  that  said  work  upon  said  claims  was 
performed  in  the  capacity  of  foreman  and  manager  thereof;  that  in 
the  course  of  the  plaintiff's  said  employment,  during  said  time, 
plaintiff  paid  moneys  for  defendant's  use  and  at  his  request  in  the 
management  and  operation  of  the  said  mining  claims,  amounting  to 
$  ;  that  the  labor  performed,  services  rendered,  and  moneys 
paid  out  by  the  plaintiff  at  defendant's  request,  as  aforesaid,  in  the 
aggregate,  amount  to  and  were  of  the  value  of  $  ;  that  no  part 
of  the  said  sum  of  $  has  been  paid  to  the  plaintiff,  except  the 
sum  of  $  ,  leaving  a  balance  of  $  due,  payable,  and 
unpaid  from  the  defendant  to  the  plaintiff. 


1268  WORK  AND  SERVICES.  [Tit.  XII. 

Wherefore,  the  plaintiff  prays  judgment  against  the  defendant  for 
the  sum  of  $  ,  and  costs  of  suit. 

Knox  &  Fennemore, 
[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  637 — For  services  rendered  by  husband  and  wife. 

(In  Mullenary  v.  Burton,  3  Cal.  App.  263;  84  Pae.  159.)1 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  on  the  1st  day  of  January,  1889,  the  defendant  employed 
plaintiff  to  superintend  his  Rancho  Jesus  Maria,  situated  in  Santa 
Barbara  County,  state  of  California,  and  agreed  to  pay  plaintiff  for 
his  services  as  such  superintendent  at  the  rate  of  $600  per  annum, 
and  to  furnish  board  to  plaintiff  and  his  family;  that  under  and  by 
virtue  of  said  contract  of  employment  the  plaintiff  continued  to 
work  for  defendant  until  the  1st  day  of  February,  1895,  when  said 
contract  of  employment  was  terminated. 

2.  That  the  defendant  paid  to  the  plaintiff  on  account  of  said 
services  the  sum  of  $1,624,  and  no  more ;  that  there  remains  due  and 
unpaid  from  defendant  to  plaintiff  the  sum  of  $2,026,  with  interest 
thereon  from  the  1st  day  of  February,  1895,  at  the  rate  of  seven  per 
cent  per  annum. 

For  a  separate  and  additional  cause  of  action,  the  plaintiff  alleges : 
That  for  six  years  next  prior  to  February  1,  1895,  plaintiff's  wife 
performed  services  for  the  defendant,  at  his  request,  by  cooking  for 
the  servants  the  defendant  had  employed  on  his  Rancho  Jesus  Maria, 
situated  in  said  county  and  state,  for  which  services  defendant  agreed 
to  pay  the  reasonable  value  thereof;  that  the  reasonable  value  of  said 
services  was  and  is  $20  per  month;  that  the  defendant  has  paid 
neither  the  whole  nor  any  part  of  the  value  of  said  services,  viz. 
$1,440,  which  sum  has  remained,  and  now  remains,  wholly  due  and 
unpaid  since  the  1st  day  of  February,  1895,  together  with  interest 
thereon  at  the  rate  of  seven  per  cent  per  annum;  that  the  first 
employment  of  plaintiff  and  his  wife  was  continued  from  the  date  of 

l  By  the  answer  in  the  case  from  the  record  in  which  form  No.  637  is  taken,  the 
defendant  pleads  the  statute  of  limitations  as  to  a  portion  of  the  claims  declared 
upon.  The  judgment  was  modified  by  striking  out  the  amount  as  to  all  services 
to  which  the  bar  of  the  statute  was  complete,  and  affirming  the  judgment  as  so 
modified:     See  Mullenary  v.  Burton,  3  Cal.  App.  263,  84  Pac.  159,  160. 


Ch.LXXXVL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1269 

its  commencement  until  the  date  of  termination  thereof,  to  wit,  the 
1st  day  of  February,  1895 ;  that  on  or  about  the  5th  day  of  February, 
1895,  defendant  departed  from  the  state  of  California ;  that  plaintiff 
is  informed  and  believes,  and  upon  such  information  and  belief 
alleges,  that  the  defendant  has  not  returned  to  the  state  of  California, 
and  upon  such  information  and  belief  further  avers  that  the  defend- 
ant has  been  absent  from  the  state  of  California  since  the  5th  day  of 
February,  1895. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defendant 
for  the  sum  of  $3,436,  with  interest  thereon  from  the  1st  day  of  Feb- 
ruary, 1895,  at  the  rate  of  seven  per  cent  per  annum,  and  for  costs 
of  suit  herein.  B.  F.  Thomas, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  638 — By  macnlnlst,  for  services  and  materials  furnished. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  from  the  day  of  ,   19     ,  to  the  day  of 

,  19     ,  at  ,  the  plaintiff  rendered  services  to  the  defend- 

ant, which  said  services  were  performed  at  the  request  of  the  defend- 
ant, in  repairing  the  machinery  in  the  mill  of  the  defendant,  and  for 
materials  and  other  necessary  things  furnished  by  this  plaintiff  in 
and  about  said  work,  on  the  like  request. 

2.  That  the  defendant  promised  to  pay  the  plaintiff  therefor  the 
sum  of  $  ,  but  he  has  not  paid  the  same,  nor  any  part  thereof. 

[Concluding  part.] 

FORM   No.  639 — By  physician,  for  services. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum  of 
$  ,  upon  an  account  for  the  services  of  the  plaintiff,  rendered 

as  a  physician  for  defendant,  at  his  request,  between  the  day 

of  ,  19     ,  and  the  day  of  ,  19     ,  in  and  about  the 

treatment  of  defendant,  and  of  members  of  his  family,  and  for  divers 
medicines  and  other  articles  provided  and  administered  in  that  behalf 
by  the  plaintiff  for  defendant,  and  at  his  like  request,  which  sum 
became  due  and  payable  from  the  defendant  to  the  plaintiff  on  the 
day  of  ,  19     . 


1270  WORK  AND  SERVICES.  [Tit.  XIL 

2.  That  on  the  day  of  ,  19     ,  at  ,  payment  of  the 

same  was  duly  demanded  from  the  defendant  by  this  plaintiff,  but 
the  same  has  not  been  paid,  nor  any  part  thereof. 

[Concluding  part.] 


FORM   No.  640 — On  builder's  contract,  with  claim  for  extra  work  for  altera- 
tions. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  parties 
hereto  entered  into  a  contract,  in  writing,  a  copy  of  which  is  hereto 
annexed,  marked  "Exhibit  A"  and  made  a  part  hereof,  whereby  the 
plaintiff  agreed  to  erect  a  house  for  the  defendant,  in  consideration 
whereof  the  defendant  was  to  pay  $  ,  as  follows :  [State  terms 
of  payment.] 

2.  That  on  the  day  of  ,  19  ,  said  contract  was  altered 
by  mutual  consent,  as  follows :    [Set  out  alterations.] 

3.  That  on  the  day  of  ,  19  ,  at  the  defendant's  request, 
the  plaintiff,  for  a  reasonable  reward  then  promised,  [here  specify 
the  extra  work  done  on  each  alteration  agreed  upon,  and  allege  the 
reasonable  value  of  the  same]. 

4.  That  in  consideration  of  said  alterations  the  time  for  completing 
said  building  was  extended  for  one  month  beyond  the  time  fixed  by 
the  contract,  to  wit,  to  the  day  of  ,  19     . 

5.  That  the  plaintiff  on  his  part  duly  performed  all  the  conditions 
of  said  contract. 

6.  That  the  defendant  has  not  paid  the  last  [two]  instalments 
called  for  by  said  contract,  nor  has  he  paid  the  balance  due  for  the 
extra  work  aforesaid  after  deducting  the  said  allowance,  amounting 
in  all  to  $ 

[Concluding  part.] 

FORM   No.  641 — By  attorneys,  for  services. 

(In  Rosenthal  v.  Ogden,  50  Neb.  218,  220 ;  69  N.  W.  779.) 

[Title  of  court  and  cause.] 

That  plaintiffs,  A.  B.  and  C.  D.,  are  partners,  engaged  in  business 
as  attorneys  and  counselors  at  law  at  ,  and  were  such  at  the 

times   hereinafter   mentioned;   that   about   the  day   of  , 


Ch.  LXXXVI.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1271 

19  ,  the  defendants  employed  plaintiffs  as  their  attorneys  in  a 
matter  in  controversy  between  defendants  and  one  ;  that  from 

said  day  of  employment  until  the  day  of  ,  19     ,  the  defend- 

ants, and  each  of  them,  counseled  with  plaintiffs  with  reference  to 
said  controversy ;  that  on  the  day  of  ,  19     ,  applied 

to  one  of  the  judges  of  the  United  States  circuit  court  of  appeals  for 
an  order  of  injunction  and  application  for  receiver  against  the 
People's  Mammoth  Instalment  Company,  in  which  suit  the  defend- 
ants herein  were  joined  as  defendants;  that  at  the  special  instance 
and  request  of  defendants  herein,  plaintiffs  performed  all  the  pro- 
fessional services  in  and  on  behalf  of  said  suit,  as  attorneys  for  the 
said  and  ,   at   Omaha,   between  the  day  of  , 

19     ,  and  the  day  of  ,  19     ,  to  wit,  [setting  out  dates]  ; 

that  said  professional  services  so  rendered  by  plaintiffs  were  reason- 
ably worth  the  sum  of  $  ;  that  said  sum  of  $  is  due  for 
said  services,  and  no  part  thereof  has  been  paid. 
"Wherefore  [etc.].                                 A.  B.  and  C.  D.,  Petitioners. 

FORM   No.  642 — By  surviving  partner  of  law  firm,  to  recover  conditional  and 
reasonable  fee  for  legal  services.     (Pleading,  also,  stated 
account.) 
(In  Keegin  v.  Joyce,  9  Cal.  App.  207;  98  Pac.  396.) 

[Title  of  court.] 
W.  C.  Keegin,  as  surviving  part-' 

ner  of  the  firm  of  Holcomb  & 

Keegin,  plaintiff, 
v. 
Thomas  F.  Joyce,  defendant. 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  at  all  times  mentioned  in  this  complaint  prior  to  the  31st 
day  of  March,  1903,  Curtis  W.  Holcomb  and  plaintiff,  William  C. 
Keegin,  were  partners,  doing  business  under  the  firm  name  of  Hol- 
comb &  Keegin,  and  engaged  in  the  practice  of  law  in  the  city  of 
Washington,  District  of  Columbia;  that  both  members  of  said  firm 
were  duly  admitted  to  practise  in  the  United  States  land  department 
and  before  the  secretary  of  the  interior,  and  in  all  the  offices  of  the 
United  States  having  jurisdiction  of  the  disposition  of  the  public 
lands  of  the  United  States ;  that  on  the  31st  day  of  March,  1903,  the 
said  Curtis  W.  Holcomb  retired  from  practice,  upon  an  agreement 


1272  WORK  AND  SERVICES.  [Tit.  XH. 

between  himself  and  plaintiff  that  plaintiff  should  complete  all  of  the 
partnership  cases  and  collect  all  fees  therefor,  and  account  to  said 
Holcomb  therefor;  that  said  Holcomb  died  in  the  month  of  May, 
1904,  and  plaintiff  is  the  surviving  partner  of  said  partnership. 

2.  That  on  or  about  the  28th  day  of  October,  1901,  the  defendant 
retained  and  employed  the  said  firm  of  Holcomb  &  Keegin  as  his 
attorneys  to  prosecute  an  appeal  to  the  commissioners  of  the  general 
land  office  of  the  United  States,  from  a  decision  of  the  register  and 
receiver  of  the  United  States  land  office  at  Los  Angeles,  California, 
adverse  to  defendant,  as  to  his  ownership  of  the  Chandler-Placer 
mining  claim.  [Here  follows  a  description  of  said  claim  and  a  state- 
ment as  to  services  rendered  upon  said  appeal,  and  a  final  decision  by 
the  secretary  of  the  interior  vacating  the  decision  adverse  to  the 
defendant,  and  reversing  the  decision  of  the  commissioner  of  the 
general  land  office,  etc.,  as  to  him,  and  final  decision  in  said  case  in 
favor  of  this  defendant.] 

3.  That  at  the  time  of  said  employment  of  said  firm  of  Holcomb  & 
Keegin  defendant  promised  and  agreed  that  he  would  pay  to  plaintiff 
a  cash  retainer  fee  of  $250,  which  should  be  in  full  for  its  services  if 
said  case  was  decided  against  defendant ;  and  that  if  said  case  should 
be  decided  in  favor  of  defendant  by  the  secretary  of  the  interior,  he, 
defendant,  would  pay  in  addition  thereto  the  reasonable  value  of  said 
services. 

4.  That  defendant  has  paid  on  account  of  said  retainer  the  sum  of 
$200,  and  no  more,  and  has  paid  nothing  upon  account  of  the  reason- 
able value  of  said  services. 

5.  That  the  reasonable  value  of  said  services  so  rendered  by  the 
firm  of  Holcomb  &  Keegin  to  defendant,  including  said  balance  of 
the  retainer  fee  aforesaid,  is  $2,000. 

[Pleading  cause  as  a  stated  account.] 

And  for  another  and  second  cause  of  action,  plaintiff  complains 
and  alleges  as  follows : 

1.  Plaintiff  hereby  makes  the  first  paragraph  of  the  first  cause  of 
action  herein  a  part  hereof,  as  if  the  same  was  fully  set  forth  herein. 

2.  That  on  the  6th  day  of  May,  1904,  an  account  was  stated 
between  the  said  firm  of  Holcomb  &  Keegin  and  the  defendant,  and 
upon  such  statement  a  balance  of  $2,000  was  found  due  to  said  firm 
from  the  defendant,  which  amount  defendant  agreed  to  pay. 

3.  That  defendant  has  not  paid  the  same,  nor  any  part  thereof. 


Ch.  LXXXVI.]         COMPLAINTS   [OR  PETITIONS].— F0RM3.  1273 

Wherefore,  plaintiff  demands  judgment  against  defendant  for  the 
gum  of  $2,000,  with  interest  thereon  at  the  rate  of  seven  per  cent  per 
annum  from  the  6th  day  of  May,  1904,  and  for  his  costs  of  suit  herein 
expended.  J.  W.  McKinley, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  643 — By  parent,  for  services  of  minor  child. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  the  defendant  is  indebted  to  the  plaintiff  in  the  sum  of 
$  ,  for  work  and  labor  performed  for  the  defendant,  at  his 
request,  by  one  M.  N.,  as  clerk,  in  defendant's  office  at  ,  from 
the              day  of              ,  19     ,  to  the              day  of              ,  19     . 

2.  That  said  M.  N.  is  the  son  of  the  plaintiff,  and  was,  during  said 
period,  and  still  is,  under  twenty-one  years  of  age. 

3.  That  such  services  were  reasonably  worth  the  sum  of  $  ; 
that  said  sum  has  not  been  paid,  nor  any  part  thereof. 

[Concluding  part.] 

FORM   No.  644 — Upon   individual  and  assigned  claims  for  services. 
(In  Greve  v.  Echo  Oil  Co.,  8  Cal.  App.  275;  96  Pac.  904.) 

[Title  of  court  and  cause.] 

Plaintiff,  by  leave  of  the  court  first  had  and  obtained,  files  this, 
his  amended  complaint,  and,  as  a  first  cause  of  action  against  the 
defendant,  alleges: 

1.  [Allegation  as  to  incorporation  of  defendant  company.] 

2.  That  defendant  became  indebted  to  the  plaintiff,  on  account  of 
the  balance  due  on  work  and  services  rendered,  in  the  sum  of  $388, 
which  said  work  and  services  were  rendered  by  plaintiff  to  defend- 
ant, within  two  years  last  past,  in  the  county  of  Fresno,  state  of  Cali- 
fornia, and  at  the  special  instance  and  request  of  defendant,  and  upon 
its  express  promise  to  pay  for  the  same. 

3.  That  the  said  sum  of  $388  has  not  been  paid,  nor  any  part 
thereof,  but  the  whole  amount  remains  now  due,  owing,  and  unpaid 
from  defendant  to  the  plaintiff. 

That  plaintiff,  as  and  for  a  second  cause  of  action  against  defend- 
ant, alleges: 

1.  [Allegation  of  incorporation  of  defendant  company.] 

2.  That  defendant  became  indebted  to  the  plaintiff  in  the  sum  of 


1274  WORK  AND  SERVICES.  (Tit.  XII. 

$60,  the  same  being  on  account  of  an  amount  allowed  and  agreed  to 
be  paid  to  the  plaintiff  for  the  keeping  of  a  team  for  the  use  of 
defendant  for  the  period  of  three  months,  to  wit,  for  and  during  the 
months  of  March,  April,  and  May,  1905 ;  that  said  team  was  kept  and 
used  by  plaintiff  for  the  defendant  at  the  special  instance  and  request 
of  defendant,  and  upon  its  express  promise  to  pay  for  the  keeping  of 
the  same. 

3.  That  said  sum  of  $60  has  not  been  paid,  nor  any  part  or  portion 
thereof,  but  the  whole  of  said  amount  remains  now  due,  owing,  and 
unpaid  from  defendant  to  the  plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  [total  of  amounts  claimed] ,  and  for  costs  of  suit,  and  for  such 
other  and  further  relief  as  may  be  proper  in  the  premises. 

Everts  &  Ewing, 

[Verification.]  Attorneys  for  plaintiff. 

§319.     ANSWERS. 

FORM   No.  645 — Defense  where  damages  exceed  alleged  value  of  services. — 

Action  upon  assigned  claim  for  reasonable  services  of  a 

physician. 

(In  Coyne  v.  Baker,  2  Cal.  App.  640;  84  Pac.  269.)1 

[Title  of  court  and  cause.] 

[After  denying  specifically  the  averments  of  the  complaint,  that 
the  physician  who  rendered  the  alleged  services  was  regularly 
licensed,  etc. ;  that  defendant  became  indebted  to  such  physician  in 
the  sum  of  $400,  on  account  of  services  rendered  at  the  special 
instance  and  request  of  defendant  within  two  years  prior  to  the 
commencement  of  the  action;  that  such  services  were  reasonably 
worth  the  sum  of  $400 ;  and,  upon  lack  of  information  or  belief  suf- 
ficient to  enable  defendant  to  answer,  that  such  claim  was  assigned 
to  plaintiff,  the  answer  proceeds :] 

4.  *  *  *  Defendant  alleges  that  the  alleged  cause  of  action 
arose  out  of  an  implied  contract  for  the  payment  of  witness  fees  in 

l  The  defense  of  this  action,  pleaded  by  way  of  answer,  although  the  damages 
alleged  to  have  been  suffered  by  the  defendant  exceeded  the  amount  claimed  by 
the  plaintiff  in  his  complaint,  the  court  held  good;  that  It  was  error  to  strike  it 
out,  and  that  the  defendant  should  have  been  allowed  to  prove  it.  The  cross-com- 
plaint, setting  up  substantially  the  same  facts,  was  also  filed,  but  demurrer  thereto 
was  sustained.  The  court  said  that  "as  the  defense  could  be  made  available  by 
answer  the  ruling  on  the  demurrer  to  the  cross-complaint,  if  erroneous,  was 
immaterial":  Coyne  r.  Baker,  2  Cal.  App.  640,  84  Pac.  269,  270. 


Cfa.  LXXXVI.]  ANSWERS.— FORMS.  1275 

a  matter  wherein  said  H.  G.  Brainard,  a  physician,  appeared  as  a 
witness  before  James  H.  Blanchard,  commissioner,  in  the  city  and 
county  of  Los  Angeles,  state  of  California,  on  or  about  the  25th,  26th, 
and  27th  days  of  June,  1901,  wherein,  by  reason  of  gross  negligence, 
ignorance,  and  carelessness  in  diagnosing  the  case,  said  Brainard 
testified  that  defendant  was  insane,  or  words  to  that  effect,  all  of 
which  was  untrue,  and  thereby  greatly  injured  and  damaged  defend- 
ant, in  an  amount  greatly  in  excess  of  any  amount  that  might  other- 
wise have  been  due  to  said  Brainard  from  this  defendant,  and  that, 
by  reason  of  such  gross  negligence,  ignorance,  and  carelessness,  the 
testimony  of  said  H.  G.  Brainard  was  of  no  value,  but,  on  the  con- 
trary, was  of  great  damage,  to  this  defendant,  to  wit,  more  than  the 
sum  of  $400 ;  that  at  the  time  said  purported  assignment  is  alleged  to 
have  been  made,  and  by  reason  of  such  gross  negligence,  ignorance, 
and  carelessness,  and  the  damages  resulting  to  defendant  as  afore- 
said, the  defendant  was  not  then,  or  at  any  time,  or  at  all,  indebted  to 
said  Brainard  or  to  the  plaintiff  in  said  sum,  or  in  any  sum  whatever. 

5.  Denies  that  the  sum  claimed  by  plaintiff  in  his  complaint  herein, 
or  any  portion  thereof,  is  now  wholly  or  at  all  due  or  payable  from 
defendant  to  plaintiff,  or  to  any  person,  or  at  all. 

Answering  the  second  and  further  cause  of  action  set  forth  in 
plaintiff's  complaint,  defendant  denies  as  follows,  to  wit:  [Here  fol- 
low substantially  the  same  allegations  as  in  paragraph  1,  to  the 
effect  that  the  said  H.  G.  Brainard  is  a  party  in  interest  in  the 
demand  of  the  plaintiff,  and  the  defendant  therefore  asks  that  the 
said  H.  G.  Brainard  be  made  a  party  to  the  suit.] 

Wherefore,  defendant  prays :  That  said  H.  G.  Brainard  be  made  a 
party  to  this  suit ;  that  the  plaintiff  take  nothing  by  this  action ;  that 
defendant  have  judgment  against  plaintiff  for  his  costs  of  suit;  and 
for  such  further  relief  as  may  be  proper.  Will  D.  Gould, 

[Verification.]  Attorney  for  defendant. 

FORM      o.  646 — Defense  of  performance. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Alleges  that  he  performed  all  the  work  and  labor  he  was  to  per- 
form in  and  by  virtue  of  the  said  contract,  and  denies  that  he  left 
unperformed  the  work,  as  in  the  complaint  [or  petition]  alleged,  or 
otherwise,  or  at  all. 

[Etc.] 


1276  WORK  AND  SERVICES.  [Tit.  XII. 

FORM   No.  647 — Denial  of  offer  to  serve. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  he  ever  at  any  time  offered  himself  to  the  defendant 
to  enter  into  his  employment  or  service. 

[Etc.] 

FORM   No.  648 — Defense  of  special  denial,  and  accounting  and  payment. 

[Title  of  court  and  cause.] 

The  defendant  answers  the  plaintiff's  complaint  [or  petition]  : 

1.  The  defendant  admits  that  the  plaintiff  did,  at  the  request  of  the 
defendant,  enter  into  the  service  of  the  defendant  as  stated  in  the 
complaint  [or  petition],  but  alleges  that  he  did  account  with  said 
plaintiff  on  the  day  of  ,  19  ,  at  ,  and  that  on  the 
said  accounting  there  was  found  due  the  plaintiff  only  the  sum  of 
$ 

2.  Defendant  alleges  that  after  said  accounting,  to  wit,  on  the 

day  of  ,  19     ,  he  paid  to  the  plaintiff  the  said  sum  of 

$  ,  so  found  due  upon  said  accounting,  and  the  plaintiff  received 

and  accepted  the  same  in  full  satisfaction  of  said  claim. 
[Concluding  part.] 

Form  of  petition  and  reply,  in  an  action  for  salary  as  president  and  general 
manager  of  a  railroad  company:  St.  Louis  etc.  R.  Co.  v.  Tiernan,  37  Kan.  606, 
608,   15  Pac.   544,   545. 

For  a  complaint,  in  an  action  to  recover  for  injuries  received  while  in  the  employ 
of  a  lumber  and  logging  company,  deemed  sufficient  in  charging  negligence  govern- 
ing the  conduct  of  the  work,  see  Lindsay  v.  Grande  Ronde  Lumber  Co.,  48  Ore. 
430,   87  Pac.   145,   146. 

A  petition  alleging  that  work  is  done  under  a  contract  made  with  the  duly 
authorized  agent  of  the  defendant,  and,  further,  in  the  alternative,  that  the  work 
was  done  at  the  solicitation  of  the  said  agent  and  with  his  knowledge  and  consent, 
although  obscure,  is  sufficient  to  sustain  a  recovery  on  a  quantum  meruit:  Sunder- 
man-Dolson  Co.  v.  Hope  (Tex.  Civ.  App  ),  118  S.  W.  216,  217. 


Ch.  LXXXVII.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1277 

CHAPTER   LXXXVII. 

Actions  for  Debt. — Goods  Sold  and  Delivered.  pa^e 

S  320.  Complaints   [or  petitions]    1277 

Form  No.  649.  Action  for  debt.     (Common  form.) 1277 

Form  No.  650.  By  partnership,  for  goods  sold  and  delivered..     1278 

Form  No.  651.  For  the  reasonable  value  of  goods  sold 1279 

Form  No.  652.  To  recover  for  goods  delivered  to  third  person 

at  defendant's  request 1279 

Form  No.  653.  To  recover  where  credit  was  given 1279 

Form  No.  654.  For  balance  on  goods  sold  and  delivered  at  an 

agreed  price 1280 

Form  No.  655.  To  recover  interest  on  a  balance  due  on  an  ac- 
count stated  1280 

Form  No.  656.  Against    foreign    corporation,    on    an    account 

stated  for  debt 1281 

Form  No.  657.  Against  husband  and  wife,  for  goods   sold  to 

wife  for  her  separate  estate 1281 

Form  No.  658.  By  an  assignee,  for  the  price  of  stock  and  fix- 
tures of  a  store,  payable  in  instalments 1282 

Form  No.  659.  On  an  assigned  debt  due  to  a  partnership 1282 

Form  No.  660.  For  goods  sold  and  delivered  to  a  partnership, 

and  to  partner  as  individual 1283 

5  321.  Answers  1284 

Form  No.  661.  Denial  of  plaintiff's  title  1284 

Form  No.  662.  Defense  that  credit  is  unexpired   1284 

Form  No.  663.  Defense  reducing  value  [or  amount  promised], 

and  pleading  payment  [or  offer  to  pay] 1284 

Form  No.  664.  Averments  in  defense  as  to  agreement  to  take 

note  in  part  payment 1285 

Form  No.  665.  Defenses— (1)  general  denial,  (2)  former  judg- 
ment       1285 

Form  No.  666.  Defenses— (1)  denial  of  account  stated,  (2)  de- 
nial of  indebtedness    1286 

f  322.  Annotations    1286 

§320.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  649— Action  for  debt.     (Common  count.) 

(In  Abadie  v.  Carrillo,  32  Cal.  172.) 

[Title  of  court  and  cause.] 

The  plaintiffs  complain  of  the  defendant,  and  for  cause  of  action 

aver: 

That  on  the  11th  day  of  August,  1863,  the  defendant  was  indebted 
to  the  plaintiffs  in  the  sum  of  $1,004.20  on  an  account  for  goods  sold 


1278  DEBT— GOODS   SOLD  AND   DELIVERED.'  [Tit.  XII. 

and  delivered  by  the  plaintiffs  to  the  defendant,  at  his  request,  in 
the  city  of  Santa  Barbara ;  that  no  part  thereof  has  been  paid ;  and 
that  there  is  now  due  them  thereon,  from  the  defendant,  the  sum  of 
$1,004.20,  with  interest  thereon  from  the  11th  day  of  August,  1863. 

Wherefore,  the  plaintiffs  pray  judgment  against  the  defendant  in 
the  sum  of  $1,004.20,  with  interest  from  the  11th  day  of  August, 
1863,  and  costs.  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

The  court  in  sustaining  the  pleading  in  form  No.  649,  which  follows  the 
form  of  the  complaint  in  Allen  v.  Patterson,  3  Seld.  (N.  Y.)  476,  holds,  that  inasmuch 
as  this  would  be  a  good  count  in  debt  at  common  law,  upon  authority  of  cases 
holding  that  the  ordinary  forms  of  counts  in  indebitatus  assumpsit,  for  goods  sold 
and  delivered,  etc.,  are  sufficient,  the  same  is  good  under  the  code:  Abadie  v.  Car- 
rillo,  32  Cal.  172,  175,  citing  Freeborn  v.  Glazier,  10  Cal.  337,  338;  De  Witt  v.  Porter, 
13  Cal.  171;  Higgins  v.  Wortell,  18  Cal.  330,  333;  Wilkins  v.  Stidger,  22  Cal.  231, 
235,   83  Am.   Dec.   64. 

FORM  No.  650 — By  partnership,  for  goods  sold  and  delivered. 
(Magee  v.  Kast,  49  Cal.  141.) 

[Title  of  court  and  cause.] 

The  plaintiffs,  complaining  of  the  defendant,  allege: 

That  plaintiffs  are  partners  in  business,  under  the  firm  name  and 
6tyle  of  Magee,  Moore  &  Co. ;  that  on  the  17th  day  of  November, 
1871,  the  defendant  was,  and  still  is,  indebted  to  the  plaintiffs  in  the 
sum  of  $1,247.50,  gold  coin,  on  an  account  for  goods,  wares,  and  mer- 
chandise, consisting  of  leather  and  shoe  manufacturers'  goods,  sold 
and  delivered  by  the  plaintiffs  to  the  defendant,  at  his  special 
instance  and  request,  at  the  city  and  county  of  San  Francisco ;  that 
no  part  of  said  sum  has  been  paid ;  that  there  is  now  due  to  the  plaint- 
iffs thereon  from  the  defendant  the  sum  of  $1,247.50,  gold  coin,  with 
interest  thereon  from  the  17th  day  of  November,  1871,  at  the  rate 
of  per  cent  per  annum. 

Wherefore,  the  plaintiffs  pray  judgment  against  the  defendant  for 
the  sum  of  $1,247.50,  gold  coin,  together  with  interest  thereon  from 
the  date  last  aforesaid,  and  costs  of  suit. 

Holladay  &  Weeks, 

[Verification.]  Attorneys  for  plaintiff. 


Ch.  LXXXVII.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1279 

FORM   No.  651 — For  reasonable  value  of  goods  sold. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
sold  and  delivered  to  the  defendant,  at  his  request,  certain  goods 
and  merchandise,  to  wit:    [Briefly  describe  the  same.] 

2.  That  said  goods  and  merchandise  were  reasonably  worth  the 
sum  of  $ 

3.  That  the  said  sum  has  not  been  paid,  nor  any  part  thereof  [ex- 
cept, etc.,  stating  payments,  if  any]. 

[Concluding  part.] 

FORM   No.  652 — To  recover  for  goods  delivered  to  third  person  at  defend- 
ant's request. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  he  bargained 
and  sold  to  the  defendant  [describe  the  goods],  and  at  the  defend- 
ant's request  delivered  the  same  to  one  L.  M. 

2.  That  the  defendant  promised  to  pay  to  the  plaintiff  therefor  the 
sum  of  $ 

3.  [As  in  paragraph  3,  form  No.  651.] 
[Concluding  part.] 

FORM   No.  653 — To  recover  where  credit  was  given. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
sold  and  delivered  to  the  defendant  [describe  the  property],  for  the 
sum  of  $ 

2.  That  the  defendant  promised  to  pay  therefor  to  the  plaintiff  the 
said  sum  of  $  ,  on  or  before  the  dat   of  ,  19     . 

3.  [As  in  paragraph  3,  form  No.  651.] 
[Concluding  part.] 


1280  DEBT.— GOODS  SOLD  AND  DELIVERED.  [Tit.  XII. 

FORM  No.  654 — For  balance  on  goods  sold  and  delivered  at  an  agreed  price. 
(In  Standard  L.  Co.  v.  Miller  &  V.  L.  Co.,  21  Okla.  617;  96  Pac.  761.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  [Allegation  of  incorporation  of  plaintiff  and  defendant  corpora- 
tions.] 

2.  That  during  the  months  of  February  and  March,  1905,  plaintiff, 
at  the  special  instance  and  request  of  the  defendant,  sold  and  deliv- 
ered to  defendant  certain  goods,  wares,  and  merchandise  at  an  agreed 
price  of  $900.25,  which  price  was  the  reasonable  market  value  there- 
of;  that  no  part  of  said  account  has  been  paid,  except  the  sum  of 
$698.97 ;  that  there  now  remains  due  and  unpaid  on  said  account  the 
sum  of  $296.28,  with  seven  per  cent  interest  thereon  from  June  7, 
1905. 

Wherefore  [etc.]. 

FORM   No.  655 — To  recover  interest  on  a  balance  due  on  an  account  stated. 
(In  Tootle  v.  Wells,  39  Kan.  452;  18  Pac.  692.) 

[Title  of  court  and  cause.] 

1.  [Introductory  part  and  averment  as  to  plaintiffs  as  partners.] 

2.  That  defendant,  J.  W.,  at  various  times  between  the  1st  day  of 
July,  1883,  and  the  1st  day  of  April,  1884,  bought  various  bills  of 
goods,  wares,  and  merchandise  from  plaintiffs,  and  between  the  1st 
day  of  November,  1883,  and  the  15th  day  of  September,  1885,  made 
various  payments  on  the  same,  a  full  and  detailed  statement  of  said 
purchases  and  payments  being  hereto  annexed,  marked  "Exhibit 
A,"  and  made  a  part  hereof. 

3.  That  it  was  agreed  and  understood  between  plaintiffs  and 
defendant  at  the  time  of  the  receipt  by  defendant  of  the  invoices  of 
each  of  said  bills  of  goods  and  the  bills  rendered  therefor  by  plaint- 
iffs before  the  maturity  of  each  of  said  bills  of  goods  that,  the  amount 
of  each  of  said  bills  remaining  due  and  unpaid  at  the  maturity  thereof 
would  draw  interest  from  that  date  at  the  rate  of  ten  per  cent  per 
annum. 

4.  That  the  total  amount  of  said  interest  as  above  specified  from 
the  maturity  of  each  of  said  bills  of  goods  to  the  14th  day  of  Septem- 
ber, 1885,  upon  the  balance  remaining  unpaid  at  the  various  times 
set  out  in  said  exhibit  A,  is  $129.20. 

5.  That  defendant  is  indebted  to  plaintiff  in  the  sum  of  $129.20  for 


Ch.  LXXXVII.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1281 

interest,  as  aforesaid,  which  defendant  has  refused,  and  still  refuses, 
to  pay,  though  often  requested  so  to  do. 

Wherefore,  plaintiffs  ask  judgment  against  defendant  for  the  sum 
of  $129.20,  with  interest  thereon  from  September  14,  1885,  and  costs 
of  suit.  A.  B.,  Attorney  for  plaintiff. 

FORM  No.  656 — Against  foreign  corporation,  on  an  account  stated  for  debt. 
(In  O'Brien  v.  Big  Casino  G.  M.  Co.,  9  Cal.  App.  283;  99  Pac.  209.) 

[Title  of  court  and  cause.] 
Plaintiff  complains,  and  alleges: 

1.  That  at  all  times  herein  mentioned  the  above-named  defendant, 
the  Big  Casino  Gold  Mining  Company,  was,  and  now  is,  a  corporation 
duly  organized  and  existing  under  the  laws  of  the  state  of  Washing- 
ton, and  transacting  and  carrying  on  business  in  the  county  of 
Tuolumne,  state  of  California. 

2.  That  within  the  two  years  immediately  preceding  the  commence- 
ment of  this  action,  at  the  said  county  of  Tuolumne,  the  defendant 
became  indebted  to  the  plaintiff  in  the  sum  of  $500,  on  an  account 
stated,  for  services  rendered  to  defendant  by  plaintiff  at  the  special 
instance  and  request  of  defendant ;  that  no  part  of  said  sum  of  $500 
has  ever  been  paid,  and  the  whole  thereof  is  now  owing  and  unpaid 
from  defendant  to  plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the  sum 
of  $500,  and  costs  of  suit.  E.  W.  Holland, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  657 — Against   husband  and  wife,  for  goods  sold  to  wife  for  her 
separate  estate. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  between  the  clay  of  ,  19     ,  and  the  day  of 

,  19     ,  at  ,  the  plaintiff  sold  and  delivered  to  the  defend- 

ant W.  X.,  who  then  was  and  still  is  the  wife  of  Y.  X.,  at  her  request, 
materials  used  for  the  building  of  a  house  upon  and  for  the  benefit  of 
her  separate  lands  and  property. 

2.  That  said  materials  were  of  the  agreed  price  and  value  [or  were 
reasonably  worth  the  sum]  of  $ 

3.  [As  in  paragraph  3,  form  No.  651.] 
[Concluding  part.] 


1282  DEBT.— GOODS  SOLD  AND  DELIVERED.  [Tit.  XH. 

FORM    No.  658 — By  an  assignee,  for  the  price  of  stock  and  fixtures  of  a  store, 
payable  in  instalments. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  L.  M.  sold 
and  delivered  to  the  defendant  the  stock  and  fixtures  of  the  grocery- 
store  at  No.  Street,  in  ,  the  property  of  said 
L.  M.,  and  bargained,  sold,  and  relinquished  to  the  defendant  the 
good-will  of  the  business  theretofore  carried  on  by  said  L.  M.  there. 

2.  That  the  defendant  agreed  to  pay  to  the  said  L.  M.  the  sum  of 
$  therefor  in  half-yearly  payments,  on  the  days  of  the 
months  of            thereafter. 

3.  [As  in  paragraph  3,  form  No.  651.] 

4.  That  thereafter  and  before  the  commencement  of  this  action, 
the  said  L.  M.  assigned  to  this  plaintiff  the  indebtedness  of  the 
defendant  therefor,  of  which  the  defendant  was  duly  notified. 

[Concluding  part.] 

FORM   No.  659 — On  an  assigned  debt  due  to  a  partnership. 

(In  Suddarth  v.  Empire  Lime  Co.,  79  Mo.  App.  585.) 
[Title  of  court  and  cause.] 

For  his  cause  of  action  against  defendant,  plaintiff  alleges: 
That  on  the  day  of  January,  1895,  the  defendant  was  in- 

debted to  plaintiff  in  the  sum  of  $456  in  this,  that  in  the  year  1894, 
and  while  the  defendant  was  engaged  in  the  manufacture  of  lime  in 
the  county  of  Lincoln,  state  of  Missouri,  the  plaintiff  and  one  P.  J. 
Blair  were  engaged  as  partners,  under  the  firm  name  and  style  of 
Suddarth  &  Blair,  in  dealing  in  cordwood  in  said  county  of  Lincoln ; 
that  at  said  time  said  firm  and  the  said  defendant  entered  into  an 
agreement  whereby  said  firm  agreed  to  furnish  the  defendant  a  large 
amount  of  cordwood  in  said  county  of  Lincoln,  for  which  the  defend- 
ant agreed  to  pay  said  firm  the  sum  of  $1.70  per  cord  for  the  amount 
of  wood  said  firm  should  furnish;  that  in  pursuance  of  said  agree- 
ment said  firm  did  furnish  to  defendaut  108%  cords  of  wood  on 
the  day  of  October,  1894,  and  159^  cords  of  wood  on  the 

day  of  November,  1894,  all  of  which  wood  the  defendant  received  at 
its  works  in  Lincoln  County,  Missouri,  and  promised  to  pay  for  at  the 
price  per  cord  aforesaid,  in  all  the  sum  of  $456 ;  that  on  the  2d  day  of 
January,  1895,  said  firm  demanded  payment  of  said  debt,  but  defend- 


Ch.  LXXXVIL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1283 

ant  failed  and  refused  to  pay  the  same  or  any  part  thereof,  and  the 
same  still  remains  due  and  unpaid;  that  afterwards  said  firm  duly 
assigned  its  said  claim  against  defendant  to  plaintiff  for  value 
received,  and  plaintiff  is  now  the  owner  thereof  and  entitled  to  pay- 
ment. 

Wherefore,  plaintiff  prays  judgment  for  said  sum  of  $456,  with 
interest  thereon  from  January  2,  1895,  and  costs  of  suit. 

Wm.  A.  Dudley,  and 
Martin  &  Woolfolk, 

[Verification.]  Attorneys  for  plaintiff. 

FORM  No.  660 — Fop  goods  sold  and  delivered  by  a  corporation  to  a  partner 
ship,  and  to  a  partner  as  an  individual. 

(In  Redwood  City  S.  Co.  v.  Whitney,  153  Cal.  421 ;  95  Pac.  885.) 
[Title  of  court.] 

Redwood  City  S.  Co.,  a  corpora- 
tion, plaintiff, 

v. 

Albert  H.  Whitney  and  Arthur  L. 
Whitney,  copartners,  doing  bus- 
iness under  the  name  and  style 
of  C.  E.  Whitney  &  Co.,  and  Ar- 
thur L.  Whitney,  defendants. 

Plaintiff  complains  of  the  defendants,  and  for  cause  of  action 
alleges : 

1.  [Averment  as  to  incorporation  of  plaintiff  company.] 

2.  [Averment  as  to  defendants,  copartners,  etc.] 

3.  That  within  two  years  last  past  the  plaintiff,  at  the  special 
instance  and  request  of  defendants,  sold  and  delivered  to  defend- 
ants goods,  wares,  and  merchandise;  that  the  reasonable  value  of 
said  goods,  wares,  and  merchandise  so  sold  and  delivered  was  the 
sum  of  $2,410. 

4.  That  the  defendants  have  not  paid  for  said  goods,  wares,  and 
merchandise,  nor  any  part  thereof,  nor  have  they  or  any  of  them 
paid  said  sum  of  $2,410,  or  any  part  thereof,  though  often  requested 
so  to  do. 


1284  DEBT.— GOODS  SOLD  AND  DELIVERED.  [Tit.  Xn. 

Wherefore,  plaintiff  prays  judgment  against  defendants  for  the 
sum  of  $2,410,  with  interest  from  the  date  of  the  commencement  of 
this  action  at  the  rate  of  seven  per  cent  per  annum,  and  for  costs  of 
suit.  George  C.  Ross, 

Attorney  for  plaintiff. 

§321.     ANSWERS. 

FORM   No.  661— Denial  of  plaintiff's  title. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition]  : 
Denies  that  the  goods,  wares,  or  merchandise  mentioned  therein, 
or  any  thereof,  were  the  property  of  the  plaintiff  when  sold  to  this 
defendant;  but  alleges  that  the  same  were  then  the  property  of  one 
L.  M.,  who  alone,  and  not  the  plaintiff,  sold  the  same  to  this  defend- 
ant. 

FORM   No.  662 — Defense  that  credit  is  unexpired. 

[Title  of  court  and  cause.] 

The  defendant  alleges  that  said  sale  was  made  upon  a  credit 
agreement,  whereby  the  defendant  was  given  the  term  of 
months  from  the  day  of  ,  19     ,  in  which  to  pay  for  said 

goods;  that  said  time  or  credit  period  had  not  expired  at  the  com- 
mencement of  this  action. 

[Etc.] 

FORM  No.  663 — Defense  reducing  value  [or  amount  promised],  and  pleading 
payment  [or  offer  to  pay]. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Denies  that  he,  defendant,  promised  to  pay  the  plaintiff  the  sum 
of  $  [stating  the  amount  alleged  in  the  complaint],  or  any 

greater  sum  than  $  .     [Or,  Denies  that  the  goods  furnished 

were  of  the  value  alleged  in  the  complaint,  or  of  any  greater  value 
than  $  .] 

Defendant  alleges  that  on  the  day  of  ,  19     ,  he  paid  to 

plaintiff  said  last-named  sum.  [Or,  That  on  said  date  (stating 
when),  and  at  (stating  where),  tender  of  said  last-named  sum  was 
made  to  the  plaintiff,  who  then,  and  ever  since  has,  refused  to 
accept.] 

[Concluding  part.] 


Ch.  LXXXVII.]  ANSWERS.— FORMS.  1285 

FORM   No.  664 — Averments  in  defense  as  to  agreement  to  take  note  in  part 
payment. 

[Title  of  court  and  cause.] 
[Introductory  part.] 

1.  That  the  said  goods  were  sold  and  delivered  to  the  defendant 
by  the  plaintiff  upon  an  agreement,  by  and  between  them,  that  the 
plaintiff  should  accept  in  part  payment  therefor,  to  the  extent  of 
$  ,  a  promissory  note  for  that  sum  drawn  by  this  defendant, 
and  dated  on  the  day  of  ,  19     ,  and  payable  on  the 

day  of  ,  19     ,  [with  an  approved  endorser, — if  such  be  a  part 

of  the  agreement,]  and  the  residue,  of  $  ,  to  be  in  cash;  that 

said  cash  residue  was  [here  allege  payment,  and  the  time  thereof, 
or  allege  offer  to  pay  at  a  stated  time  and  place,  as  the  case  may  be] . 

2.  That  on  the  day  of  ,  19  ,  and  before  this  action 
was  commenced,  the  defendant  tendered  to  the  plaintiff  such  a  note 
as  above  described  [endorsed  by  ,  who  was  then,  and  still  is, 
a  person  of  good  credit  and  ability,  and  a  sufficient  endorser]  ;  that 
defendant  is  still  ready  and  willing  to  deliver  said  note  and  to  pay 
said  residue  in  cash  as  agreed. 

3.  That  the  defendant  refused  to  receive  said  note,  and  has  re- 
fused, and  still  refuses,  to  abide  by  the  agreement  aforesaid. 

[Etc.] 

FORM   No.  665 — Defenses — (1)  general  denial,  (2)  former  judgment. 
(In  Reidy  v.  Scott,  53  Cal.  69.) 

[Title  of  court  and  cause.] 

Now  comes  the  defendant,  and  answers  the  complaint  of  the  plaint- 
iffs herein,  as  follows: 

1.  Denies  every  allegation  in  said  complaint  as  if  said  allegations 
were  separately  set  forth  herein  and  specifically  and  at  length 
denied. 

2.  For  a  further  and  separate  defense  to  this  action,  defendant 
alleges  that  on  the  26th  day  of  September,  1876,  an  action  was  com- 
menced in  the  above-entitled  court  by  the  above-named  plaintiffs 
against  defendant,  to  recover  the  amount  sued  for  in  this  action; 
that  the  cause  of  action  set  forth  in  the  complaint  in  said  suit  is  the 
same  as  that  alleged  in  the  complaint  in  this  action;  that  thereafter, 
and  before  the  commencement  of  this  action,  to  wit,  on  the  30th  day 
of  December,   1876,   judgment  was   duly  rendered  in   said   action 

Jury's   PI.— 82. 


1286  DEBT.— GOODS  SOLD  AND  DELIVERED.  [Tit.  XII. 

against  plaintiffs,  and  in  favor  of  defendant,  for  the  costs  thereof; 
that  said  judgment  has  never  been  appealed  from  or  set  aside,  or  in 
any  manner  disturbed. 

Wherefore,  defendant  asks  judgment  against  plaintiffs  for  his  costs. 
Bodley  &  Campbell,  Attorneys  for  defendant. 

FORM   No.  666 — Defenses — (1)  denial  of  account  stated,  (2)  denial  of  indebt- 
edness. 

(In  Stimson  M.  Co.  v.  Hughes  M.  Co.,  8  Cal.  App.  559;  97  Pac.  322.) 

[Title  of  court  and  cause.] 

[After  introductory  part  and  denials  conformably  to  this  defense, 
the  answer  proceeds :] 

Defendant  denies  that  plaintiff  at  any  time  rendered  to  defendant 
an  itemized  or  any  bill  of  the  material  then  delivered,  or  that  on  the 
first  or  any  day  of  each  or  any  month  thereafter,  or  at  all,  plaintiff 
rendered  to  defendant  a  full  or  complete  or  any  account,  or  referred 
to  the  itemized  bills  previously  or  at  all  rendered  to  defendant,  or 
that  said  accounts  or  either  of  them,  or  any  account  alleged  to  have 
been  rendered,  ever  became  a  stated  account,  or  that  defendant  ever 
agreed  or  assented  thereto;  denies  that  there  is,  or  ever  has  been, 
any  stated  account  between  plaintiff  and  defendant  for  said  ma- 
terial, or  that  he  is  indebted  to  plaintiff  in  any  amount  whatsoever; 
[etc.]. 

[Concluding  part.] 

Form  of  complaint  in  an  action  to  recover  for  material  and  machinery  furnished 
in,  about,  and  for  rebuilding  a  certain  flouring-mill:  Gove  v.  Island  City  Merc.  etc. 
Co.,  19  Ore.  363,  24  Pac.  521. 

Form  of  demurrer  in  an  action  to  recover  money  alleged  to  be  owing  by  defend- 
ants on  an  account  for  goods,  wares,  and  merchandise,  sold  by  plaintiff  to  defend- 
ants:    Howes  v.  Lynde,  7  Mont.  545,  548,  19  Pac.  249. 

§322.     ANNOTATIONS. — Actions  for  debt.— Goods  sold  and  delivered. 

1.  Action  In  assumpsit. — Pleading  at  common  law. 
2,  3.  Sufficiency  of  pleading  under  the  code. 
4.  Assumpsit  lies  after  part  performance. 
E.  Partner  may  maintain  assumpsit  against  copartner. 

6.  Rescission  for  refusal  or  neglect  to  perform. 

7.  Purchase  and  sale. — Renunciation  of  contract. 

8.  Action  by  partners  on  quantum  meruit. 

9.  Variance  as  to  dates  of  sales,  when  immaterial. 

10.  Account  stated. — Nature  of. 

11.  Account  not  mutual. 

12.  Mistake  in  account  stated,  how  put  in  issue. 
18,  14.  Action  for  balance  of  account. — Daily  balances. 

15.  Defense  of  non-delivery. — Under  general  denial. 

16.  Reply  to  counterclaim. 


Ch.  LXXXVII.] 


ANNOTATIONS. 


1287 


1.  ACTION  IN  ASSUMPSIT.— Pleading 
at  common  law. — Under  the  system  of 
pleading  at  common  law  it  was  requisite 
that  the  declaration  in  action  of  as- 
sumpsit upon  executed  consideration 
should  show  that  consideration  for 
promise  by  defendant  was  sufficient  to 
support  his  promise,  and  it  was  suffi- 
cient to  aver  that  consideration  was 
executed  at  his  request,  but  this  aver- 
ment was  unnecessary  when  considera- 
tion as  well  as  promise  was  implied 
from  the  nature  of  transaction  set  forth 
in  the  declaration — as  in  an  action  for 
goods  sold  and  delivered  to  defendant 
or  for  money  loaned  to  him  by  plaintiff: 
McFarland  v.  Holcomb,  123  Cal.  84,  86, 
55  Pac.  761.  See  Fisher  v.  Pyne,  1  Man. 
&  G.  265,  39  Eng.  C.  L.  437. 

2.  Sufficiency  of  pleading  under  the 
code. — It  is  sufficient  under  the  code  to 
state  facts  in  an  action  in  assumpsit 
from  which  a  promise  to  pay  will  be 
implied:  National  Bank  v.  Landis,  34  Mo. 
App.  433,  440,  cited  in  Bick  v.  Clark,  134 
Mo.  App.  544,  114  S.  W.  1144. 

3.  Indebitatus  assumpsit. — A  count  in 
indebitatus  assumpsit,  framed  substan- 
tially as  required  at  common  law,  is  now 
held  to  be  a  sufficient  compliance  with 
the  code  mandate  as  to  allegations  of 
fact:  Henry  Inv.  Co.  v.  Semonian,  40 
Colo.  269,  90  Pac.  682,  citing  Campbell 
v.  Shiland,  14  Colo.  491,  23  Pac.  324; 
Wilcox  v.  Jamieson,  20  Colo.  158,  36 
Pac.  902. 

4.  Assumpsit  lies  after  part  perform- 
ance where  the  entire  performance  of  a 
special  contract  has  been  prevented  by 
one  of  the  parties,  or  where  its  terms 
have  been  afterwards  varied  by  agree- 
ment of  both  parties:  Reynolds  v.  Jour- 
dan,  6  Cal.  108,  111;  Cox  v.  Western 
Pac.  R.  Co.,  47  Cal.  87,  90;  Cox  v.  Mc- 
Laughlin, 76  Cal.  60,  63,  64,  18  Pac.  100, 
9  Am.  St.  Rep.  164;  Joyce  v.  White,  95 
Cal.  236,  238,  30  Pac.  524;  Porter  v.  Ar- 
rowhead R.  Co.,  100  Cal.  500,  503,  35  Pac. 
146. 

5.  Partner  may  maintain  assumpsit 
against  copartner  for  contribution  where 
he  pays  partnership  debt  existing  after 
dissolution  of  partnership;  and  this  is 
true  although  he  gives  his  individual 
note  for  debt  due  from  the  firm:  Sears 
v.  Starbird,  78  Cal.  225,  231;  20  Pac.  547. 

6.  Rescission  for  refusal  or  neglect  to 
perform. — A  refusal  or  neglect  by  one 
party  to  perform  his  part  of  a  contract 
justifies   the  other  in   treating  the  same 


as  rescinded,  and  authorizes  him  to  sue 
generally  as  in  indebitatus  assumpsit: 
Miller  v.  Thompson,  22  Ark.  258,  cited 
in  South  Texas  Tel.  Co.  v.  Huntington 
(Tex.  Civ.  App.),   121  S.  W.  242,  248. 

7.  PURCHASE  AND  SALE.— Renun- 
ciation of  contract. — Mere  failure  to  pay, 
not  evincing  a  purpose  to  renounce  a 
contract,  is  insufficient  to  justify  the 
seller  in  treating  the  contract  as  aban- 
doned; but  if,  from  all  the  circum- 
stances, it  appears  that  the  buyer  in- 
tended to  renounce  and  abandon  the 
contract,  the  seller  may  then  repudiate 
the  same  because  of  its  breach  by  the 
buyer:  Quarton  v.  American  Law  Book 
Co.  (Iowa),  121  N.  W.  1009,  1014;  Mon- 
arch Co.  v.  Wheel  Co.,  105  Fed.  324,  44 
C.  C.  A.  523;  West  v.  Betchel,  125  Mich. 
144,  84  N.  W.  69,  51  L.  R.  A.  791.  (For 
a  review  of  the  cases  touching  the  ques- 
tion of  contracts  of  sale,  rights  of  the 
seller  upon  abandonment  of  the  contract 
by  the  buyer  or  upon  conditions,  and 
limitation  of  right  of  specific  perform- 
ance in  reference  thereto,  see  Quarton 
v.  American  Law  Book  Co.  (Iowa),  121 
N.  W.  1009,  1016.) 

8.  Action  by  partners  on  quantum 
meruit. — In  an  action  brought  by  part- 
ners, in  their  individual  names,  upon 
quantum  meruit,  it  is  not  necessary  to 
allege  that  the  cause  of  action  accrued 
to  them  as  copartners:  Wilson  v.  Te- 
gean  Bros.,  38  Mont.  504,  100  Pac.  613, 
615.  See  Clark  v.  Wick,  25  Ore.  446,  36 
Pac.  165;  Boosalis  v.  Stevenson,  62  Minn. 
193,  64  N.  W.  3S0. 

9.  Variance  as  to  dates  of  sales,  when 
immaterial. — Where  the  gist  of  an  action 
was  the  sale  of  material  described  in  an 
exhibited  account,  variance  as  to  the 
date  of  sales  is  not  fatal  where  the 
defendants  could  not  have  been  misled 
by  the  variance  and  did  not  claim  to 
have  been  misled:  C.  H.  Smith  etc.  Co. 
v.  Weatherford  (Ark.),  121  S.  W.  943, 
946. 

10.  ACCOUNT  STATED.— Nature  of. 
— An  account  stated  alters  the  nature 
of  the  original  indebtedness,  and  is  in 
itself  in  the  nature  of  a  new  prom- 
ise or  undertaking:  Naylor  &  Norlin  v. 
Lewiston  etc.  R.  Co.,  14  Idaho  789,  96 
Pac.  573,  578,  (to  foreclose  lien  under 
an  account  stated);  Hendy  v.  March,  75 
Cal.  566,  17  Pac.  702;  Carey  v.  Philadel- 
phia etc.  Petroleum  Co.,  33  Cal.  697; 
Holmes  v.  De  Camp,  1  Johns  (N.  Y.) 
36,   3  Am.  Dec.  293. 


1288 


MONEY  HAD  AND  RECEIVED. 


[Tit.  XII. 


11.  An  account,  not  mutual,  but  one- 
sided, has  been  likened  to  money  had 
and  received  for  one  by  another.  In  a 
sense,  definite  payments  to  one  for  an- 
other would  constitute  an  account,  each 
payment  being  an  item;  yet  the  action 
would  essentially  be  for  money  had  and 
received.  If  the  payments  be  made  on 
a  transaction,  and  some  of  them  are 
older  then  the  period  of  limitations  and 
others  within  the  period,  the  aggregate 
constitutes  a  single  demand.  As  each 
successive  payment  is  made,  the  cause 
of  action  is  merely  enlarged,  until  the 
last  one,  within  the  period  of  limitation, 
would  make  the  total  of  a  single  chain, 
the  subject  of  a  single  action:  Roberts 
v.  Neale,  134  Mo.  App.  612,  114  S.  W. 
1121,  citing  and  approving  these  princi- 
ples as  stated  in  Kearns  v.  Heitman,  104 
N.  C.  332,  10  S.  E.  467. 

12.  Mistake  in  account  stated,  how  put 
in  issue. — An  action  upon  an  account 
stated  is  not  founded  upon  the  original 
items,  but  upon  the  balance  ascertained 
by  the  mutual  consent  of  the  parties; 
so  where  such  account  stated  is  assailed 
upon  the  ground  of  mistake,  the  mistake 
must  be  put  in  issue  by  the  pleadings: 
Naylor  &  Norlin  v.  Lewiston  etc.  R.  Co., 
14  Idaho  789,  96  Pac.  573,  578;  Coffee  v. 
Williams,  103  Cal.  550,  37  Pac.  504; 
Auzerais  v.  Naglee,  74  Cal.  60,  15  Pac. 
371;  Terry  v.  Sickles,  13  Cal.  427. 

13.  Action  for  balance  of  account. — 
The  account  must  be  alleged  in  an 
action    for    balance    of    account,    in    like 


manner  as  in  ordinary  actions,  and  the 
complaint  should  specify  the  nature  of 
the  items  composing  it:  Knowles  v. 
Sandercock,  107  Cal.  629,  641,  40  Pac. 
1047. 

14.  Daily  balances. — An  action  may  be 
brought  for  daily  balances,  as  shown  by 
an  account:  Santa  Rosa  Nat.  Bank  v. 
Barnett,  125  Cal.  407,  410,  58  Pac.  85. 

15.  DEFENSE  OF  NON-DELIVERY. 
— Under  general  denial. — In  an  action  to 
recover  for  goous  alleged  to  have  been 
sold  and  delivered  to  the  defendants,  a 
general  denial  puts  in  issue  the  deliv- 
ery, and  it  is  not  necessary  to  specif- 
ically allege  the  defense  of  non-delivery 
of  the  goods  in  order  to  admit  evidence 
tending  to  show  that  the  plaintiff  had 
not  performed  the  contract  in  this  re- 
spect: Mette  &  K.  D.  Co.  v.  Lowrey, 
39  Mont.  124,  101  Pac.  966,  969. 

16.  Reply  to  counterclaim. — Under  a 
complaint  for  goods  sold  and  delivered  at 
an  agreed  price,  and  where  the  defend- 
ant, as  a  basis  for  its  counterclaim, 
pleaded  that  said  contract  was  such  as 
to  require  further  deliveries,  which  the 
plaintiff  failed  to  make;  held,  that  the 
reply  of  the  plaintiff  to  this  counter- 
claim should  have  pleaded  a  modifica- 
tion of  this  contract  sufficient  to  excuse 
the  plaintiff  from  further  deliveries.  The 
general  denial  of  the  plaintiff  to  the 
counterclaim  puts  in  issue  the  existence 
of  the  contract  as  pleaded  by  the  de- 
fendant: Brooklyn  Creamery  Co.  v.  Fri- 
day, 137  Wis.  461,  119  N.  W.  126,   127. 


CHAPTER  LXXXVII1. 

Money  Had  and  Received. — Involuntary  Trusts. 

Page 

§  323.  Complaints  [or  petitions]    1289 

Form  No.  667.  For  money  had  and  received.     (Common  form.)  1289 
Form  No.  668.  On  assigned  claim  for  money  had  and  received, 

etc. — Statement  of  cause  in  separate  counts  1289 

Form  No.  669.  For  recovery  back  of  a  wager 1290 

Form  No.  670.  To  recover  specific  moneys  lost  by  a  servant  in 

gambling   1290 

§  324    Answers    1292 

Form  No.  671.  Denial  of  receipt  of  moneys 1292 

Form  No.  672.  Defense  of  accounting  and  payment 1292 

S  325.  Annotations    1292 


Ch.  LXXXVIIL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1289 

§323.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  667 — For  money  had  and  received.  (Common  form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
received  from  one  E.  F.  the  sum  of  $  ,  to  and  for  the  use  of  the 
plaintiff. 

2.  That  on  the  day  of  ,  19  ,  and  before  the  commence- 
ment of  this  action,  the  plaintiff  demanded  payment  thereof  from  the 
defendant. 

3.  [As  in  paragraph  3,  form  No.  651.] 
[Concluding  part.] 

FORM   No.  668 — On  assigned  claim  for  money  had  and  received,  etc. — State- 
ment of  cause  in  separate  counts. 

(In  Miller  v.  Abrahamson,  9  Cal.  App.  396;  99  Pac.  534.) 
[Title  of  court  and  cause.] 
Plaintiff  complains,  and  alleges : 

1.  That  defendant  is  indebted  to  plaintiff  in  the  sum  of  $622.10, 
for  money  had  and  received  by  defendant  to  and  for  the  use  of  the 
plaintiff  and  L.  P.  Laursen  within  two  years  last  past. 

2.  That  no  part  of  said  sum  has  ever  been  paid,  although  demand 
therefor  has  often  been  made. 

3.  That  prior  to  the  bringing  of  this  action  the  said  L.  P.  Laursen 
assigned  and  transferred  all  his  interest  in  said  claim  against  defend- 
ant to  plaintiff  herein,  and  plaintiff  is  now  the  lawful  owner  and 
holder  thereof. 

And  for  a  further  and  second  count  against  defendant,  plaintiff 
alleges: 

1.  That  plaintiff  is  now,  and  for  more  than  one  year  last  past  has 
been,  a  contractor,  engaged,  together  with  L.  P.  Laursen,  in  the  city 
of  Los  Angeles,  in  the  business  of  building  houses,  and  that  during 
said  time  defendant  has  had  various  subcontracts  from  plaintiff  and 
Laursen  for  doing  certain  brickwork  for  plaintiff  and  Laursen; 
that  plaintiff  was  accustomed  to  and  did  pay  the  defendant  from 
time  to  time  various  sums  of  money  upon  orders  or  requests 
therefor  made  by  defendant  upon  plaintiff  and  Laursen ;  and  that  the 
total  amount  paid  by  plaintiff  to  defendant  on  such  orders  and  re- 


]290  MONEY  HAD  AND  RECEIVED.  [Tit.  XII. 

quests  of  defendant,  as  aforesaid,  since  the  2d  day  of  July,  1906,  has 
aggregated  the  sum  of  $17,625.10. 

3.  That  the  total  amount  due  from  plaintiff  and  Laursen  to  defend- 
ant for  all  of  said  subcontracts  hereinbefore  referred  to,  since  and 
including  the  2d  day  of  July,  1906,  has  been  and  now  is  the. sum  of 
$17,003,  and  no  further  or  other  sum  whatsoever,  and  that  the  bal- 
ance now  due  from  defendant  to  plaintiff,  by  reason  of  such  over- 
payment, and  by  reason  of  the  assignment  hereinafter  alleged,  is  the 
sum  of  $622.10. 

5.    [Averment  of  assignment  as  in  paragraph  3,  first  count.] 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  said 
sum  of  $622,  and  costs  of  suit.  Avery  &  French, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  669 — For  recovery  back  of  a  wager. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
deposited  in  the  hands  of  the  defendant,  as  stakeholder,  the  sum  of 
$  ,  which  was  to  abide  the  event  of  a  wager  entered  into 
between  the  plaintiff  and  one  L.  M.,  on  the  result  of  [a  horse  race,  or 
game  of  chance,  specifying]  then  about  to  take  place. 

2.  That  such  wager  was  in  violation  of  the  statute  entitled  [set  out 
title] .  passed  ,  and  acts  amending  the  same  and  supplementary 
thereto. 

3.  That  the  result  of  said  [horse  race,  etc.]  yet  remains  undeter- 
mined, and  the  defendant  still  retains  said  money  as  stakeholder. 

4.  That  on  the  day  of  ,  19  ,  the  plaintiff  demanded  the 
return  of  said  money  of  the  defendant;  that  said  sum  has  not,  nor 
has  any  part  thereof,  been  returned  or  paid  back. 

[Concluding  part.] 

FORM   No.  670 — To  recover  specific  moneys  lost  by  a  servant  in  gambling. 

(In  Ramirez  v.  Main,  11  Ariz.  43;  89  Pac.  508.) x 

[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendant,  and  alleges : 
That  on  the  20th  day  of  July,  1903,  in  the  said  county  of  Santa 
Cruz,  one  Jesus  Mendoza,  being  then  and  there  the  servant  of  and  in 

i  The  complaint,  substantially  as  given  above,  was  sustained  as  against  a  gen- 
eral demurrer:    Ramirez  v.  Main,  11  Ariz.  43,  89  Pac.  508,  509. 


Ch.  LXXXVIII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1291 

the  employ  of  this  plaintiff,  had  in  his  possession,  and  instrusted  to 
him  by  this  plaintiff,  as  such  servant  and  agent,  a  certain  sum  of 
money,  to  wit,  the  sum  of  $6,000,  in  money  of  the  republic  of  Mexico, 
the  same  being  the  property  of  this  plaintiff,  and  being  intrusted  to 
the  said  Jesus  Mendoza,  as  aforesaid,  for  the  specific  purpose  of 
safely  carrying  and  conveying  the  same  from  the  bank  of  Sonora  to 
the  office  or  place  of  business  of  this  plaintiff,  and  to  be  delivered  to 
this  plaintiff  for  his  use  and  benefit;  that  the  said  Jesus  Mendoza, 
without  the  knowledge  or  consent  of  the  plaintiff,  and  in  violation 
of  his  trust  as  such  servant  or  employee,  did,  at  the  date  and  in  the 
county  aforesaid,  engage  in  a  gambling  game  with  one  Frank  M. 
Main,  the  defendant  herein,  and  thereupon  did  lose  and  cast  to  the 
possession  of  the  said  Frank  M.  Main,  the  sum  of  $5,950,  money  of 
the  republic  of  Mexico,  as  aforesaid,  the  same  being  of  the  said  money 
of  the  said  C.  Ramirez  the  plaintiff  herein,  intrusted  to  the  said  Jesus 
Mendoza,  as  aforesaid;  that  the  said  Frank  M.  Main  has  and  holds 
the  said  sum  of  $5,950,  money  of  the  republic  of  Mexico,  as  aforesaid, 
the  property  of  this  plaintiff,  without  consideration,  and  without 
legal  or  equitable  title ;  that  the  said  defendant  is  indebted  to  this 
plaintiff  in  the  said  sum  of  $5,950,  money  of  the  republic  of  Mexico, 
as  aforesaid,  all  and  every  part  of  which  is  due  from  the  said  defend- 
ant to  this  plaintiff;  that  on  said  20th  day  of  July,  1903,  one  dollar  of 
the  money  of  the  republic  of  Mexico  was  of  the  value  of  forty-three 
cents  of  the  money  of  the  United  States  of  America,  and  that  the  said 
sum  of  $5,950,  of  money  of  the  republic  of  Mexico,  was  on  the  said 
20th  day  of  July,  1903,  of  the  value  of  $2,558.50,  in  lawful  money  of 
the  United  States  of  America ;  that  plaintiff  has  demanded  the  said 
sum  of  money  so  due,  but  that  defendant  has  not  paid  the  same,  nor 
any  part  thereof. 

Wherefore,  the  plaintiff  prays  judgment  against  the  defendant  for 
the  sum  of  $5,950,  money  of  the  republic  of  Mexico,  or  its  value,  at 
the  date  of  its  loss,  in  lawful  money  of  the  United  States,  to  wit,  the 
sum  of  $2,558.50,  in  lawful  money  of  the  United  States ;  and  for  such 
other  and  further  relief  as  may  be  brought  in  the  premises,  and  for 
•costs  of  this  action. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 


1292  MONEY  HAD  AND  RECEIVED.  [Tit.  XII. 

§324.     ANSWERS. 

FORM   No.  671 — Denial  of  receipt  of  moneys. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 
Denies  that  he  ever  received  the  money  mentioned  in  the  complaint 
[or  petition],  or  any  part  thereof. 
[Etc.] 

FORM   No.  672 — Defense  of  accounting  and  payment. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Alleges  that  on  the  day  of  ,  19     ,  at  ,  he 

accounted  with  and  paid  over  to  the  plaintiff  all  moneys  received  by 
him,  defendant,  up  to  that  day. 

[Etc.] 

§325.     ANNOTATIONS.— Money  had  and  received. — Involuntary  trusts. 

1,  2.  Allegation   that   moneys   were   received    "to   or    for   the   use   of   plaintiff'" 
essential. 

3.  When  action  for  money  had  will  lie. 

4.  Privity  of  contract  not  necessary. 

5.  Common-law  count  for  money  had  and  received  not  sufficient  averment 

for  cause  of  action  for  fraud. 

6.  Moneys  held  by  an  agent. 

7-10.  Moneys  paid  by  mistake. — Promise  not  necessary  to  allege. 

11.  Pleading  in  action  for  usury. 

12.  Common-law  remedy  of  offset  or  counterclaim. 

1.  Allegation  that  moneys  were  re-  plaintiff  in  a  certain  sum  "for  money  had 
ceived  "to  or  for  the  use  of  plaintiff"  and  received  by  the  defendant  to  and 
essential.— A  count  in  a  complaint  al-  for  the  use  of  the  plaintiff":  Fox  v. 
leging,  "that  within  the  two  years  next  Monahan,  8  Cal.  App.  707,  97  Pac.  765. 
last  past,  and  at  the  city  and  county  of  3.  When  action  for  money  had  will  lie. 
San  Francisco,  state  of  California,  the  — The  action  for  money  had  and  received 
defendants  became  indebted  to  Fox-Bal-  will  lie  wherever  it  appears  that  defend- 
lantyne  Co.,  in  the  sum  of  $55,  money  ant  has  received  money  which  in  equity 
had  and  received  by  defendants  from  and  good  conscience  he  should  pay  to 
said  Fox-Ballantyne  Co.,  at  the  special  the  plaintiff.  Under  this  principle,  a 
instance  and  request  of  defendants,"  is  complaint  which  alleges  that  the  money 
an  insufficient  statement  of  a  cause  of  was  plaintiff's  assignor's,  as  his  corn- 
action,  there  being  no  allegation,  either  mission  from  the  sale  of  certain  real 
directly  or  by  implication,  that  the  property,  and  was  collected  by  defend- 
money  was  had  or  received  for  the  use  ants  and  appropriated  to  their  own  use,, 
of  plaintiff  or  his  assignors.  A  general  is  good  as  against  a  general  demurrer: 
demurrer  thereto  is  properly  sustained:  Fox  v.  Monahan,  8  Cal.  App.  707,  97  Pac. 
Fox    v.    Monahan,    8    Cal.    App.    707,    97  765. 

Pac.   765.  4.   No   privity   of   contract   Is   necessary 

2.  The  approved  and  usual  form  for  to  sustain  the  action  for  money  had  and 
the  count  of  money  had  and  received  is  received;  for  the  law,  under  circum- 
very  simple,  consisting  merely  in  stating  stances  where  money  is  held  by  a  per- 
that    the    defendant    is    indebted    to    the  son  which  in  equity  and  good  conscience- 


Ch.  LXXXVIII.] 


ANNOTATIONS. 


1293 


belongs  and  should  be  paid  to  another, 
Implies  a  promise  to  pay.  It  is  of  no 
Importance  how  the  money  came  into 
the  holder's  hands  if  the  other  party  is 
legally  entitled  to  it:  Stoakes  v.  Larson, 
108  Minn.    234,   121   N.   W.   1112,    1114. 

5.  Common-law  count  for  money  had 
and  received  not  sufficient  averment  for 
cause  of  action  for  fraud. — Where  the 
complaint  in  an  action  alleges  that  on 
the  24th  day  of  April,  1907,  the  defend- 
ants received  the  sum  of  $3,000  from 
the  plaintiffs  "to  and  for  the  use  of  the 
plaintiffs,"  which  sum,  after  demand,  the 
defendants  have  refused  to  repay,  and 
where  the  answer  is  a  general  denial, 
it  has  been  held,  in  a  recently  well-con- 
sidered case  in  Montana,  that  testimony 
designed  to  show  fraud  is  not  admis- 
sible under  the  pleadings,  for  the  rea- 
son that  the  facts  relied  upon  to  show 
fraud  were  not  set  forth  in  the  com- 
plaint. The  court  says  that  "a  complaint 
fashioned  after  a  common-law  count, 
may  or  may  not  state  facts  sufficient  to 
constitute  a  cause  of  action  under  the 
code.  In  this  state  there  is  no  action  for 
money  had  and  received  as  such;  and 
there  is  no  common  law  in  any  case 
where  the  law  is  not  declared  by  the 
code  (§  860,  Rev.  Codes).  The  common 
counts  have  been  superseded  by  our 
system  of  code  pleading.  A  complaint, 
under  this  latter  system,  must  contain 
a  statement  of  the  facts  constituting  a 
cause  of  action  in  ordinary  and  concise 
language  (§  6532,  Rev.  Codes).  If  the 
phraseology  of  any  common  count  is 
adequate,  in  any  particular  case,  to 
bring  the  pleader  within  the  code  rule, 
then  his  pleading  is  sufficient;  otherwise, 
it  is  not.  When  a  pleader  elects  to  em- 
ploy the  language  of  a  common  count, 
he  subjects  himself  to  the  rules  govern- 
ing the  construction  and  sufficiency  of 
complaints  under  the  codes;  that  is  to 
say,  if  a  common  count  will  in  fact 
state  his  cause  of  action  in  ordinary 
and  concise  language,  it  is  good.  If  it 
will  not,  it  is  bad":  Truro  v.  Passmore, 
38  Mont.  544,  100  Pac.  966,  968. 

6.  Moneys  held  by  an  agent. — Under 
circumstances  where  an  agent  becomes 
possessed  of  moneys,  a  portion  of  which 
belongs  to  him  and  a  portion  to  his  prin- 
cipal, an  action  for  money  had  and  re- 
ceived will  lie,  on  the  principle  that  one 
man  shall  not  withhold  that  which  right- 
fully belongs  to  another:  Jenkins  v. 
Clopton   (Mo.    App.),   121  S.  W.   759,   765; 


Crlgler  v.  Duncan,  121  Mo.  App.  381,  392, 
99  S.  W.  61;  Winningham  v.  Fancher,  52 
Mo.  App.  458;  Mansur  v.  Botts,  80  Mo. 
651;  Cary  v.  Curtis,  3  How.  (44  U.  S.) 
236,  11  L.  ed.  576;  Chesapeake  etc.  Canal 
Co.  v.  Knapp,  9  Pet.  (34  U.  S.)  541,  564, 
565,  9  L.  ed.  222. 

7.  The  right  to  recover  money  paid  by 
mistake  is  in  no  manner  dependent  upon 
an  express  admission  by  the  party  re- 
ceiving it,  or  on  his  agreement  to 
refund:  Fidelity  Savings  Bank  v.  Reeder, 
142  Iowa  373,  120  N.  W.  1029,  1030,  citing 
Boyer  v.  Pack,  2  Denio  (N.  Y.)  107;  Bal- 
timore etc.  R.  Co.  v.  Faunce,  6  Gill. 
(Md.)  68,  46  Am.  Dec.  655;  Worley  v. 
Moore,  97  Ind.  15;  Clark  v.  Sylvester 
(Me.)  13  Atl.  404;  Johnson  v.  Saum,  123 
Iowa  145,  98  N.  W.  599;  Holmes  v.  Lucas 
Co.,  53  Iowa  211,  4  N.  W.  918;  Hoffmann 
v.  Cockrell,  112  Iowa  141,  83  N.  W.  898; 
Iowa  State  Bank  v.  Cereal  etc.  Broker- 
age Co.,  132  Iowa  248,  109  N.  W.  719. 

8.  Promise,  when  not  necessary  to  al- 
lege.— An  allegation  of  an  express  admis- 
sion by  the  party  receiving  money  paid 
by  mistake,  made  after  the  discovery  of 
the  mistake,  and  accompanied  by  a 
promise  to  correct  it,  is  not  necessary; 
nor  is  it  necessary  to  allege  such  prom- 
ise in  a  complaint  in  an  action  to  recover 
the  money  so  paid:  Fidelity  Savings 
Bank  v.  Reeder,  142  Iowa  373,  120  N.  W. 
1029,  1030,  (construing  Iowa  code  §  3639). 

9.  Money  paid  through  a  mistake  of 
fact  may  be  recovered  in  an  action  for 
that  purpose:  American  Brewing  Co.  v. 
St.  Louis,  187  Mo.  367,  86  S.  W.  129,  2" 
Am.  &  Eng.  Ann.  Cas.  821. 

10.  The  rule  that  moneys  paid  through 
a  mistake  of  fact  may  be  recovered  is 
subject  to  the  qualification  that  the 
party  paying  must  make  the  payment 
under  a  bona  fide  belief  that  the  money 
is  due:  American  Brewing  Co.  v.  St. 
Louis,  1S7  Mo.  367,  86  S.  W.  129,  2  Am. 
&  Eng.  Ann.  Cas.  821. 

11.  Pleading  In  action  for  usury. — A 
complaint  in  an  action  for  the  recov- 
ery of  money  paid  as  usury  is  not 
required  to  allege  expressly  that  the 
usury  was  knowingly  paid  and  ac- 
cepted, where  the  objection  is  not  raised 
by  demurrer,  but  upon  objection  to  the 
admission  of  evidence  thereunder.  In. 
such  case  the  authorities  favor  a  lib- 
eral construction  of  the  pleadings: 
Waldner  V.  Bowden  State  Bank,  13  N. 
Dak.   604,   102  N.  W.   169,  3  Am.   &  Eng. 


1294                                                   MONEY  LENT.                                            [Tit.  XII. 

Ann.    Cas.    847.      See    Stutsman    County  (S.  Dak.),  121  N.  W.   853,   855,    (constru- 

v.   Mansfield,    5   Dak.    78,   37   N.   W.   304;  ing    U.    S.    Rev.     Stats.     §  5197.)     citing 

Commonwealth    etc.    Co.    v.    Dokko,    71  Schuyler  Nat.  Bank  v.  Gadsden,  191  U.  S. 

Minn.    533,    74    N.    W.    891;    Peterson    v.  451,   24  Sup.  Ct.  129,  48  L.  ed.  258;  Has- 

Hopewell,    55    Neb.    670,    76    N.    W.    451;  eltine   v.    Central   Nat.    Bank,    183   U.    S. 

Whitbeck    v.    Sees,    10    S.    Dak.    417,    73  132,  22  Sup.  Ct.  50,  46  L.  ed.  118;  Dries- 

N.    W.    915.  bach   v.   Wilkesbarre  Nat.   Bank,   104   U. 

12.  The  common-law   remedy  of  offset  s.    52,    26    L.    ed.    658;    Barnet    v.    Nat. 

or  counterclaim   for  money  had  and   re-  Bank,  98  U.  S.  555,  25  L.  ed.  212;  Farm- 

ceived    will    not   lie    to    recover   usurious  ers    etc.    Bank    v.    Dering,    91    U.    S.    29, 

interest    where    the    right    to    recover    is  23  L.  ed.  196;  Walsh  v.  Mayer,  111  U.  S. 

given  by  statute  which  defines  the  nature  31,     4     Sup.     Ct.     260,     28     L.     ed.     338; 

of    the   action    and    provides    for    a   pen-  Stephens     v.     Monongahela     Bank      111 

alty:     McCarty   v.    First   National   Bank  U.  S.  197,  4  Sup.  Ct.  336,  28  L.  ed.  399. 


CHAPTER   LXXXIX. 

Money  Lent. 

Page 

§  326.  Complaints  [or  petitions]  1294 

Form  No.  673.  For  money  lent.     (Common  form.) 1294 

Form  No.  674.  By  assignee  of  lender  against  borrower 1294 

§  327.  Answers    1295 

Form  No.  675.  Denial  of  loan 1295 

Form  No.  676.  Defense  that  money  was  paid  in  settlement  of 

an  antecedent  debt   1295 

§326.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  673 — For  money  lent.     (Common  form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff  lent 
to  the  defendant,  at  his  request,  $  ,  which  the  defendant  prom- 
ised to  repay,  with  interest,  on  demand  [or  on  a  day  named]. 

2.  That  on  the  day  of  ,  19  ,  the  plaintiff  duly 
demanded  payment  of  the  same  from  the  defendant,  but  said  sum 
has  not  been  paid,  nor  any  part  thereof. 

[Concluding  part.] 

FORM   No.  674 — By  assignee  of  lender  against  borrower. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19     ,  at  ,  the  defendant 

was  indebted  to  one  L.  M.  in  the  sum  of  $  ,  on  an  account  for 

money  lent  by  said  L.  M.  to  the  defendant. 


€h.  LXXXIX.]  ANSWERS.— FORMS.  1295 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  said  L.  M. 
assigned  said  indebtedness  to  the  plaintiff,  of  which  assignment  the 
defendant  had  due  notice. 

3.  That  said  sum  has  not  been  paid,  nor  any  part  thereof. 
[Concluding  part.] 

§327.     ANSWERS. 

FORM    No.  675— Denial  of  loan. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 
Denies  that  the  plaintiff  lent  him  the  money  mentioned  in  the 
complaint  [or  petition],  or  any  part  thereof. 

[Etc.] 

FORM   No.  676 — Defense  that  money  was  paid  in  settlement  of  an  antecedent 
debt. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Defendant  alleges  that  said  sum  of  $  ,  alleged  in  the  com 

plaint  [or  petition]  to  have  been  loaned  to  defendant  by  the  plaintiff, 
was  paid  by  plaintiff  to  defendant  in  the  settlement  of  a  debt  at  the 
time  of  said  payment  owing  to  defendant  from  the  plaintiff  upon  an 
account  [or  other  obligation,  specifying]. 

[Concluding  part.] 

Action  to  recover  moneys  loaned,  consisting  of  trust  funds  and  other  amounts: 
For  substance  of  the  petition  upon  -which  judgment  was  affirmed  for  the  plaintiff, 
see  Pullis  v.   Somerville,   218  Mo.   624,   117  S.  W.   736,   737. 

In  an  action  at  law  to  recover  moneys  alleged  to  have  been  collected  by  the 
defendant  for  the  account  of  the  plaintiff,  it  is  not  necessary  to  allege  that  the 
money  loaned  was  in  fact  the  money  of  the  defendant,  or  that  the  cashier  of  the 
defendant  was  merely  a  nominal  party  whose  name  was  made  use  of  as  a  means 
or  excuse  for  an  attempt  to  exact  a  so-called  commission.  These  questions  are 
matters  of  evidence  which  the  pleader  is  neither  required  nor  permitted  to  plead: 
Leasure  v.  Boie,  142  Iowa  284,  120  N.  W.  643,  644. 


1296  IMPLIED  CONTRACTS,  ETC.  [Tit.  XII. 

CHAPTER   XC. 

Money  Paid  for  the  Benefit  of  Another,  and  on  Implied  Contracts. 

Page 
{  328.  Complaints   [or  petitions]    1296 

Form  No.  677.  Money  paid  to  third  person  upon  defendant's 

promise  to  repay   1296 

Form  No.  678.  To  recover  money  overpaid  by  mistake 1296 

Form  No.  679.  By  bank,  to  recover  attorney's  fees  and  ex- 
penses incurred  against  a  party  who  fraudu- 
lently obtained  a  draft 1297 

Form  No.  680.  By  landlord  against  tenant,  for  repayment  of 

tax  1298 

Form  No.  681.  By  endorser  who  has  paid  part  of  note 1298 

Form  No.  682.  By  maker  of  accommodation  note  who  has  paid 

the  same   1299 

Fovm  No.  683.  For  repayment  of  money  after  judgment  re- 
versed       1299 

§328.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  677 — Money   paid   to   third    person    upon    defendant's   promise   to 
repay. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff, 
at  the  defendant's  request,  paid  to  one  L.  M.  $ 

2.  That  in  consideration  thereof  the  defendant  promised  to  repay 
the  same  to  the  plaintiff. 

3.  That  on  the  day  of  ,  19  ,  the  plaintiff  demanded 
payment  of  the  same  from  the  defendant,  but  said  amount  has  not 
been  repaid,  nor  any  part  thereof. 

[Concluding  part.] 

FORM   No.  678 — To  recover  money  overpaid  by  mistake. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
rendered  to  the  plaintiff  an  account  of  mutual  dealings  theretofore 
had  between  them,  in  which  said  account  an  indebtedness  of  the 
plaintiff  to  the  defendant  in  the  sum  of  $              was  set  forth. 

2.  That  the  plaintiff,  believing  said  account  to  be  correctly  stated 
and  free  from  errors,  then  paid  the  said  amount  to  the  defendant. 


Ch.XC]  COMPLAINTS   [OR  PETITIONS.]— FORMS.  1297 

3.  That  in  fact  said  account  was  not  correctly  stated,  but,  on  the 
contrary,  it  overcharged  the  plaintiff  with  the  sum  of  $  ,  by 
[setting  out  the  error]. 

4.  [Same  as  paragraph  3,  form  No.  677.] 
[Concluding  part.] 

FORM   No.  679 — By  bank,  to   recover  attorney's  fees  and  expenses  incurred 
against  a  party  who  fraudulently  obtained  a  draft 

(In  Bank  v.  Williams,  62  Kan.  431;  63  Pac.  744.) 

[Title  of  court  and  cause.] 
[After  introductory  part:] 

1.  That  defendant,  for  the  purpose  of  wronging,  cheating,  and 
defrauding  said  bank,  made  and  delivered  to  it  a  check  drawn  on  the 
Citizens'  Bank  of  ,  in  the  amount  of  $  ,  and  bought  of 
and  received  from  plaintiff  a  draft  on  New  York  for  said  sum,  pay- 
able to  his  own  order;  that,  to  carry  out  his  fraudulent  purpose, 
defendant  represented  that  he  had  on  deposit  in  the  Citizens'  Bank 
a  sum  equal  to  the  amount  of  the  check. 

2.  That  said  check  was  worthless;  that  on  discovering  this  fact 
plaintiff,  by  telegraph,  stopped  payment  on  the  New  York  draft ;  that 
defendant  immediately  left  the  state,  and  thereafter  procured  said 
draft  to  be  cashed  at  ,  by  M.  &  Sons,  at  that  place ;  that  M. 
&  Sons  were  innocent  purchasers  of  said  draft,  and  that  plaintiff  was 
liable  thereon  to  M.  &  Sons  for  the  amount  of  said  draft;  that  in 
order  to  protect  itself  against  loss  it  became  necessary  for  plaintiff 
to  counsel  and  advise  with  attorneys,  and  employ  a  lawyer  to  go  to 

and  procure  a  settlement  of  said  draft  by  defendant  with 
M.  &  Sons,  by  returning  to  them,  said  M.  &  Sons,  said  money  paid  to 
him,  said  ,  by  M.  &  Sons,  on  said  draft,  which  was  finally 

done ;  that  in  procuring  the  settlement  of  said  draft  to  the  extent 
aforesaid,  and  repayment  of  the  money  to  M.  &  Sons,  plaintiff  was 
put  to  large  expense,  to  wit,  for  telegraphing,  attorney's  fees,  and 
other  expenses,  in  all  the  sum  of  $  ;  that  all  of  said  costs  and 

expenses  were  caused  by  and  through  the  wrongful,  fraudulent,  and 
felonious  acts  of  the  defendant  in  giving  said  worthless  check  and 
representing  the  same  to  be  valid  and  good,  and  said  amount  is  the 
fair  and  reasonable  value  thereof;  that  defendant  has  now  in  his 
possession  said  original  draft  drawn  on  the  National  Bank  of  North 
America,  and  refuses  to  deliver  the  same  to  plaintiff. 


1298  IMPLIED  CONTRACTS,  ETC.  [Tit.  XII. 

Wherefore,  plaintiff  prays  that  said  draft  be  canceled  and  sur- 
rendered to  plaintiff,  and  for  $  damages  [etc.]. 

FORM   No.  680 — By  landlord  against  tenant,  for  repayment  of  tax. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff  and 
the  defendant  entered  into  an  agreement,  by  which  the  defendant 
hired  of  the  plaintiff  a  house  in  the  village  of  ,  and  further 
agreed  [etc.,  reciting  stipulation  to  pay  tax]. 

2.  That  there  was  duly  levied  and  assessed  upon  the  said  premises 
for  the  year  19  ,  and  while  the  covenants  of  the  aforesaid  agree- 
ment were  in  full  force,  and  the  defendant  was  in  possession  of  the 
premises  by  virtue  thereof,  a  tax  of  $  ,  which  the  defendant 
neglected  to  pay. 

3.  That  by  reason  thereof  the  plaintiff  was,  on  the  day  of 

,  19     ,  compelled  to  pay  the  said  sum  of  $  ,  with  $ 

arrearages  of  interest,  at  per  cent,  amounting  in  the  whole  to* 

the  sum  of  $ 

4.  That  said  sum  has  not  been  repaid,  nor  any  part  thereof. 
[Concluding  part.] 

FORM   No.  681 — By  endorser  who  has  paid  part  of  note. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant,, 
for  value  received,  made  and  delivered  to  the  plaintiff  his  promissory 
note  for  $  ,  payable  to  the  plaintiff's  order  in  days  after 
said  date. 

2.  That  before  the  maturity  of  said  note  the  plaintiff  endorsed  and 
negotiated  the  same  for  value. 

3.  That  at  maturity  the  said  note  was  duly  presented  to  the  defend- 
ant for  payment  [or  allege  excuse  for  non-presentment],  but  was  not 
paid,  of  all  of  which  the  plaintiff  had  due  notice,  and  was  on  the 

day  of  ,  19     ,  compelled  to  pay,  and  did  pay,  to  one  0.  P., 

the  holder  of  said  note,  the  sum  of  $  ,  being  the  amount  due 

thereon  from  the  defendant. 

4.  That  said  sum  has  not  been  repaid  nor  any  part  thereof. 
[Concluding  part.] 


Cb.XC]  COMPLAINTS   [OR  PETITIONS.]— FORMS.  1299 

FORM   No.  682 — By  maker  of  accommodation  note  who  has  paid  the  6ame. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
made  and  delivered  to  the  defendant  his  promissory  note,  in  the  sum 
of  $  ,  payable  to  the  defendant's  order  in  days  after  said 
date. 

2.  That  the  plaintiff  never  received  any  consideration  for  said  note, 
but  the  same  was  an  accommodation  note,  given  to  the  defendant  at 
his  request,  and  on  his  promise  to  pay  the  same  at  maturity. 

3.  That  as  the  plaintiff  is  informed  and  believes,  and  therefore 
alleges,  the  defendant  thereafter,  and  before  its  maturity,  negotiated 
said  note  for  value. 

4.  That  the  defendant  did  not  pay  said  note  at  maturity,  in  conse- 
quence whereof  the  plaintiff  was  compelled  to  and  did,  on  the 

day  of  ,  19     ,  pay  the  sum  of  $  in  satisfaction  thereof. 

5.  That  said  sum  has  not  been  repaid,  nor  any  part  thereof. 
[Concluding  part.] 

FORM   No.  683 — For  repayment  of  money  after  judgment  reversed. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  judgment  was  duly  given, 
made,  and  rendered  against  this  plaintiff  in  the  court  of  the 
county  of  ,  in  an  action  wherein  the  defendant  was  plaintiff, 
and  this  plaintiff  was  defendant,  for  the  sum  of  $ 

2.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  compelled 
to  pay,  and  did  pay,  to  the  defendant  $  ,  in  satisfaction  of  the 
said  judgment. 

3.  That  afterwards,  on  the  day  of  ,  19  ,  by  the  judg- 
ment of  said  court  [or  other  appellate  court],  duly  given  and  made, 
the  said  first-mentioned  judgment  was  duly  reversed. 

4.  [Same  as  paragraph  3,  form  No.  677.] 
[Concluding  part.] 


1300  HIRING  OF  PERSONAL  PROPERTY.  [Tit.  XII. 

CHAPTER   XCI. 

Hiring  of  Personal  Property. 

Page 

§  329.  Complaints   [or  petitions]    1300 

Form  No.  684.  For  hire  of  personal  property 1300 

Form  No.  685.  For  hire  of  furniture,  with  damages  for  ill-usage  1300 

Form  No.  686.  For  hire  of  piano-forte 1301 

§329.     COMPLAINTS  [OR  PETITIONS]. 
FORM    No.  684 — For  hire  of  personal  property. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  between  the  day  of  ,  19     ,  and  the  day  of 

,  19  ,  the  defendant  hired  from  the  plaintiff  [horses,  carriages, 
etc.],  for  which  he  promised  to  pay  the  plaintiff,  on  account  thereof, 
the  sum  of  $  ,  on  the  day  of  ,  19     . 

2.  That  said  sum  has  not  been  paid,  nor  any  part  thereof. 
[Concluding  part.] 

FORM    No.  685 — Hire  of  furniture,  with  damages  for  ill-usage. 
[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 
For  a  first  cause  of  action : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
hired  from  the  plaintiff  [state  what],  the  property  of  the  plaintiff, 
for  months  then  next  ensuing,  for  the  use  of  which  he  prom- 
ised to  pay  at  the  rate  of  $  per  month,  and  agreed  to  return 
the  same  in  good  condition  to  the  plaintiff  at  the  expiration  of  said 
time,  reasonable  wear  and  tear  excepted. 

2.  That  said  amount  has  not  been  paid,  nor  any  part  thereof. 
For  a  second  cause  of  action : 

1.  That  the  value  of  the  property  so  hired  by  the  defendant  as 
aforesaid  was  $ 

2.  That  the  defendant  did  not  use  said  property  in  a  reasonable 
manner,  nor  take  due  care  of  the  same;  that  by  his  negligence  and 
ill-use  the  same  has  become  defaced  and  injured  beyond  the  reason- 
able wear  and  tear  thereof,  and  was  returned  to  the  plaintiff  in  said 
damaged  condition,  to  the  plaintiff's  further  damage  in  the  sum  of 

$ 

3.  [Same  as  paragraph  2,  preceding  form.] 
[Concluding  part.] 


Chs.  XCI,  XCIL]  COMPLAINTS.— CODE  PROVISIONS.  1301 

FORM   No.  686 — For   hire  of  piano-forte. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
hired  from  the  plaintiff  one  piano-forte,  the  property  of  the  plaintiff, 
for  the  term  of  months  then  next  ensuing,  to  be  returned  to 
this  plaintiff  at  the  expiration  of  said  time  in  good  condition,  reason- 
able wear  excepted ;  that  for  the  use  of  the  same,  defendant  promised 
to  pay  plaintiff  a  reasonable  sum  [or  state  an  amount  agreed  upon]. 

2.  That  $  is  a  reasonable  sum  for  the  hire  of  the  same,  which 
sum,  on  the  day  of  ,  19  ,  became  due  from  the  defendant 
to  the  plaintiff. 

3.  [Same  as  paragraph  2,  form  No.  681.] 
[Concluding  part.] 


CHAPTER   XCII. 

Hotelkeepers  or  Innkeepers. 

Page 

%  330.  Code  provisions    1301 

•§  331.  Complaints  [or  petitions]    1308 

Form  No.  687.  Against  an  innkeeper,  for  loss  of  baggage 1308 

Form  No.  688.  To  recover  for  loss  of  pocket-book  containing 

money 1309 

Form  No.  689.  Against  innkeeper,  for  refusal  to  receive  and 

lodge  guest   1309 

Form  No.  690.  By  innkeeper,  for  board  and  lodging 1310 

•S  332.  Answers    1310 

Form  No.  691.  Defense  that  plaintiff  was  not  a  guest 1310 

Form  No.  692.  Defense   where   moneys    [or   other   valuables] 

lost  were  not  deposited  with  th,e  innkeeper 

for  safe-keeping 1310 


§330.     CODE  PROVISIONS. 

Innkeeper's  liability. 

California,  §  1859.  The  liability  of  an  innkeeper,  hotelkeeper, 
boarding-house  and  lodging-house  keeper,  for  losses  of  or  injuries 
to  personal  property,  other  than  money,  placed  by  his  guests,  board- 
ers, or  lodgers  under  his  care,  is  that  of  a  depositary  for  hire ;  pro- 
vided, however,  that  in  no  case  shall  such  liability  exceed  the  sum 

Jury's  PL— 83. 


1302 


INNKEEPERS. 


[Tit.  XII. 


of  one  hundred  dollars  for  each  trunk  and  its  contents,  fifty  dollars 
for  each  valise  or  traveling-bag  and  contents,  and  ten  dollars  for 
each  box,  bundle,  or  package  and  contents,  so  placed  under  his 
care,  unless  he  shall  have  consented  in  writing  with  the  owner 
thereof  to  assume  a  greater  liability.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the- 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 


a  Arizona,  Rev.   Stats.   1901,   fl  2919. 
3014.     c  lowa,  Ann.  Codes  1897,  §  3138 
e  Montana,   Rev.    Codes   1907,    §  5164. 
§3766;    Ann.    Stats.    (Cobbey),    §6390 


b  Colorado,  Rev.  Stats.  1908,  §§3011, 
a  Missouri,  Ann.  Stats.  1906,   §7579. 

f  Nebraska,  Comp.  Stats.  Ann.  1909,. 
g  North    Dakota,    Rev.    Codes    1905, 


§  5476.  b  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §  2853;  Comp.  Laws. 
1909  (Snyder),  §3014.  i  South  Dakota,  Rev.  Codes  1903,  C.  C.  §1381.  i  Wis- 
consin, Stats.  1898   (San.  &  Ber.  Ann.),  §  1726. 

tices,  stating  that  such  places  for  safe- 
deposit  are  provided  for  the  use  and  ac- 
commodation of  the  inmates  thereof, 
shall   not   be   liable   for   the   loss   of   any 


a  Arizona,  fl  2919.  An  innkeeper  is 
liable  for  all  losses  of,  or  injuries  to, 
personal  property  placed  or  left  by  his 
guests  under  his  care;  unless  occasioned 
by  an  irresistible,  superhuman  cause,  by 
a  public  enemy,  by  the  negligence  of  the 
owner,  or  by  the  act  of  some  one  whom 
he    brought    into    the    inn. 

bi  Colorado,  §  3011.  The  landlord  or 
keeper  of  any  hotel  or  public  inn  shall 
not  be  liable  for  the  loss  of  any  article 
or  articles  left  by  any  guest  or  patron  in 
any  room  or  rooms  assigned  to  or  occu- 
pied by  such  guest  or  patron,  in  any 
event,  greater  than  the  sum  of  two  hun- 
dred (200)  dollars  for  all  articles  which 
may  be  lost  by  said  guest  or  patron,  ex- 
cept by  an  agreement  in  writing  made 
by  the  landlord  or  keeper  of  such  hotel 
or  public  inn,  or  person  in  charge  of  the 
office,   assuming  a  greater  liability. 

b2  Colorado,  §  3014.  None  of  the  pro- 
visions of  this  act  shall  be  construed  so 
as  in  any  event  to  render  the  landlord 
or  keeper  of  a  hotel  or  public  inn  in  this 
state  liable  in  a  greater  sum  than  the 
actual  loss  or  damage  sustained. 

c  lowa,  §  3138.  Keepers  of  hotels,  inns 
and  eating-houses  and  steamboat  own- 
ers, who  shall  provide  and  keep  therein 
a  good  and  sufficient  vault  or  safe  for 
the  deposit  of  money,  jewels  and  other 
valuables,  and  shall  provide  a  safe  and 
commodious  place  for  the  baggage, 
clothing  and  other  property  belonging  to 
their  guests  and  patrons,  and  keep 
posted  up  in  a  conspicuous  place  in  the 
office  or  other  public  room,  and  in  the 
guests'   apartments   therein,    printed   no- 


money,  jewels,  valuables,  baggage  or 
other  property  not  deposited  with  them, 
unless  such  loss  shall  occur  through  the- 
fault  or  negligence  of  such  landlord  or 
keeper,  or  steamboat  owner,  his  agent, 
servant  or  employee,  but  nothing  herein, 
contained  shall  apply  to  such  reasonable 
amount  of  money,  nor  to  such  jewels, 
baggage,  valuables  or  other  property  as 
is  usual,  fit  and  proper  for  any  such 
guests  to  have  and  retain  in  their  apart- 
ments or  about  their  persons.  Hotel, 
inn,  rooming-house  or  eating-house 
keepers  shall  have  a  lien  upon,  and  may 
take  and  retain  possession  of,  all  bag- 
gage and  other  property  belonging  to  or 
under  the  control  of  their  guests  or 
patrons,  which  may  be  in  such  hotel, 
inn,  rooming-house  or  eating-house,  for 
the  value  of  their  accommodations  and 
keep,  and  for  all  money  paid  for  or  ad- 
vanced to,  and  for  such  extras  and  other 
things  as  shall  be  furnished,  such  guest 
or  patron,  and  such  property  so  retained 
shall  not  be  exempt  from  attachment  or 
execution  to  the  amount  of  the  reason- 
able charges  of  such  hotel,  inn,  rooming- 
house  or  eating-house  keeper,  against 
such  guest  or  patron,  and  the  costs  of 
enforcing  the  lien  thereon.  (Sup.  1907 
as  amended  Mch.  12,  1909,  Laws  1909,  p. 
185.) 

d  Missouri,  §  7579.  No  innkeeper  in 
this  state  shall  be  liable  for  the  loss  of 
any    baggage    or    other    property    of    a. 


Ch.  XCII.J 


CODE  PROVISIONS. 


1308 


guest,  caused  by  fire  not  intentionally 
produced  by  the  innkeeper  or  his  serv- 
ants, nor  shall  he  be  liable  for  the  loss 
of  any  merchandise  for  sale  or  sample 
belonging  to  a  guest,  unless  the  guest 
shall  have  given  written  notice  of  hav- 
ing such  merchandise  for  sale  or  sample 
in  his  possession  after  entering  the  inn, 
nor  shall  the  innkeeper  be  compelled  to 
receive  such  guest  with  merchandise  for 
sale  or  sample;  but  innkeepers  shall  be 
liable  for  the  losses  of  their  guests, 
caused  by  the  theft  of  such  innkeeper 
or  his  servants,  anything  herein  to  the 
contrary  notwithstanding. 

e  Montana,  §  5164,  substantially  same 
as  Arizona  fl  2919,  except  in  line  3, 
after  "placed"  omit  "or  left"  before  "by 
his  guests." 

f  Nebraska,  §  3766.  The  liability  of  the 
keeper  of  any  inn  or  hotel,  whether  in- 
dividual, partnership,  or  corporation,  for 
loss  of  or  injury  to  personal  property 
placed  by  his  guests  under  his  care, 
other  than  that  described  in  the  preced- 
ing section,  shall  be  that  of  a  depositary 
for  hire;  provided,  however,  that  in  no 
case  shall  such  liability  exceed  the  sum 
of  one  hundred  and  fifty  dollars  for  each 
trunk  and  its  contents,  fifty  dollars  for 
each  valise  and  its  contents,  and  ten  dol- 
lars for  each  box,  bundle,  or  package, 
and  contents,  so  placed  under  his  care, 
all  other  miscellaneous  effects  including 
wearing  apparel  and  personal  belong- 
ings, fifty  dollars,  unless  he  shall  have 
consented  in  writing  with  such  guest  to 
assume  a  greater  liability.  And  pro- 
vided further  whenever  any  person  shall 
suffer  his  baggage  or  property  to  remain 
in  any  inn  or  hotel,  after  leaving  the 
same  as  a  guest,  and  after  the  relation 
of  innkeeper  and  guest  between  such 
guest  and  the  proprietor  of  such  inn  or 
hotel    has    ceased,    or   shall    forward    the 


same  to  such  inn  or  hotel  before  be- 
coming a  guest  thereof  and  the  same 
shall  be  received  into  such  inn  or  hotel 
such  innkeeper  may  at  his  option  hold 
such  baggage  or  property  at  the  risk  of 
such  owner. 

g  North  Dakota,  §  5476,  substantially 
same  as  Montana  §  5164,  except,  at  the 
opening  after  "innkeeper"  insert  "or 
keeper  of  a  boarding  house"  before  "is 
liable";  also  in  line  2  after  "guests"  in- 
sert "or  boarders";  also  at  the  end  after 
"inn"  add  "or  boarding-house." 

h  Oklahoma,  §  2S53.  Any  innkeeper  or 
keeper  of  a  boarding-house  is  liable  for 
all  losses  of,  or  injuries  to,  personal 
property  placed  by  his  guests  or  board- 
ers under  his  care,  unless  occasioned  by 
an  irresistible  superhuman  cause,  by  a 
public  enemy,  by  the  negligence  of  the 
owner,  or  by  the  act  of  some  one  whom 
he  brought  into  the  inn  or  boarding- 
house,  and  upon  such  property  the  inn- 
keeper or  keeper  of  a  boarding-house 
has  a  lien  and  a  right  of  detention  for 
the  payment  of  such  amount  as  may  be 
due  him  for  lodging,  fare,  boarding,  or 
other  necessaries  by  such  guest  or 
boarder;  and  the  said  lien  may  be  en- 
forced by  a  sale  of  the  property  in  the 
manner  prescribed  for  the  sale  of 
pledged  property. 

i  South  Dakota,  C.  C.  §  13S1,  substan- 
tially same  as  Oklahoma  §  2853,  except  at 
the  end  after  "property"  add  "or  by  the 
Code  of  Civil  Procedure." 

J  Wisconsin,  §  1726.  No  innkeeper  shall 
be  liable  for  the  loss  of  any  baggage  or 
other  property  of  his  guest  caused  by 
fire,  not  intentional,  produced  by  the 
innkeeper  or  any  of  his  servants;  but 
every  innkeeper  shall  be  liable  for  any 
loss  of  any  guest  in  his  inn  caused  by 
theft  or  gross  negligence  of  such  inn- 
keeper or  any  of  his  servants. 


Limiting  of  liability. 
California,  §  1860.  If  an  innkeeper,  hotelkeeper,  boarding-house 
or  lodging-house  keeper,  keeps  a  fire-proof  safe,  and  gives  notice  to 
a  guest,  boarder,  or  lodger,  either  personally  or  by  putting  up  a 
printed  notice  in  a  prominent  place  in  the  office  or  the  room  occu- 
pied by  the  guest,  boarder,  or  lodger,  that  he  keeps  such  a  safe  and 
will  not  be  liable  for  money,  jewelry,  documents,  or  other  articles 
of  unusual  value  and  small  compass,  unless  placed  therein,  he  is  not 


1304 


INNKEEPERS. 


[Tit.  XII. 


liable,  except  so  far  as  his  own  acts  shall  contribute  thereto,  for  any 
loss  of  or  injury  to  such  articles,  if  not  deposited  with  him  to  be 
placed  therein,  nor  in  any  case  more  than  the  sum  of  two  hundred 
and  fifty  dollars  for  any  or  all  such  property  of  any  individual 
guest,  boarder,  or  lodger,  unless  he  shall  have  given  a  receipt  in 
writing  therefor  to  such  guest,  boarder,  or  lodger.  (Kerr's  Cyc. 
Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

*  Arizona,  Rev.  Stats.  1901,  ff  2920.  b  Colorado,  Rev.  Stats.  1908,  C.  C. 
P.  §3007.  clowa,  Ann.  Code  1897,  §3138.  a  Minnesota,  Rev.  Laws  1905, 
§2810.  e  Missouri,  Ann.  Stats.  1906,  §7578.  *  Montana,  Rev.  Codes  1907, 
§5165.  s  Nebraska,  Comp.  Stats.  Ann.  1909,  §§3764,  3765;  Ann.  Stats. 
(Cobbey),  §§6388,  6389.  n  North  Dakota,  Rev.  Codes  1905,  §5477.  I  Okla- 
homa, Rev.  and  Ann.  Stats.  1903  (Wilson),  §2854;  Comp.  Laws  1909  (Sny- 
der), §3015.  i  South  Dakota,  Rev.  Codes  1903,  C.  C.  §1383.  k  Washington, 
Code  1910  (Rem.  &  Bal.),  §1203.  i  Wisconsin,  Stats.  1898  (San.  &  Ber. 
Ann.),  §1725.     m  Wyoming,  Rev.  Stats.  1899,  §2514. 


a  Arizona,  f  2920.  If  an  innkeeper 
keeps  a  fire-proof  safe,  and  gives  no- 
tice to  a  guest,  either  personally  or  by 
putting  up  a  printed  notice  in  a  prom- 
inent place  in  the  room  occupied  by  the 
guest,  that  he  keeps  such  a  safe  and  will 
not  be  liable  for  money,  jewelry,  docu- 
ments or  other  articles  of  unusual  value 
and  of  small  compass,  unless  placed 
therein,  he  is  not  liable,  except  so  far 
as  his  own  acts  contribute  thereto,  for 
any  loss  of  or  any  injury  to  such  arti- 
cles if  not  deposited  with  him  and  not 
required  by  the  guest  for  present  use. 

b  Colorado,  §  3007.  Hereafter  every 
landlord  or  keeper  of  a  hotel  or  public 
inn  in  this  state,  who  shall  provide  in 
the  office  of  his  hotel  or  inn,  or  other 
convenient  place,  a  safe,  vault,  or  other 
suitable  receptacle,  for  the  secure  cus- 
tody of  money,  jewelry,  ornaments  or 
other  valuable  articles,  other  than  neces- 
sary baggage,  belonging  to  the  guests  or 
patrons  of  such  hotel  or  public  inn,  and 
shall  keep  posted  in  a  public  and  con- 
spicuous place  in  the  office,  public  room 
and  public  parlors  of  such  hotel  or  pub- 
lic inn,  and  upon  the  inside  entrance 
door  of  every  public  sleeping-room  in 
such  hotel  or  public  inn,  a  notice  printed 
In  English,  stating  such  fact,  shall  not 
be  liable  for  the  loss  of  any  money,  jew- 
elry, ornaments  or  other  valuable  arti- 
cles, other  than  necessary  baggage,  sus- 


tained by  such  guest  or  patron  by  theft 
or  otherwise,  unless  such  guest  or  patron 
shall  deliver  such  money,  jewelry,  orna- 
ments or  other  valuable  articles,  other 
than  necessary  baggage,  to  the  landlord 
or  keeper  of  such  hotel  or  public  inn,  or 
person  in  charge  of  the  office  of  such 
hotel  or  public  inn,  for  deposit  in  such 
safe,  vault  or  other  receptacle;  pro- 
vided, that  such  liability  shall  not  be 
greater  than  the  amount  at  the  time  of 
deposit  declared  by  the  guest  or  patron 
to  be  the  value  of  the  article  deposited. 

c  Iowa,  §  3138,  see  note  c  to  Cal.  Civ. 
Code  §  1859. 

d  Minnesota,  §  2810.  Whenever  the 
keeper  of  a  hotel  shall  provide  therein 
an  iron  safe  suitable  for  the  keeping  of 
valuables,  and  shall  keep  posted  con- 
spicuously in  the  office  and  on  the  inside 
of  the  entrance  door  to  every  bedroom, 
and  to  every  parlor  and  other  public 
room  in  the  building,  a  notice  to  the 
guests  that  they  may  leave  their  money 
and  other  valuables  with  the  proprietor 
for  deposit  therein,  such  keeper  shall  not 
be  liable  for  the  loss,  by  theft  or  other- 
wise, of  valuables  not  so  left  for  deposit, 
unless  the  loss  occurs  through  the  negli- 
gence of  such  keeper,  or  of  some  agent 
or  servant  employed  by  him.  Every 
such  proprietor  or  manager  shall  provide 
locks  and  bolts  for  all  room  doors. 

•  Missouri,     i  7578.     No     innkeeper     in 


Ch.  XCII.] 


CODE  PROVISIONS. 


1305 


this  state,  who  shall  constantly  have  in 
his  inn  an  Iron  safe,  in  good  order,  and 
suitable  for  the  safe  custody  of  money, 
jewelry  and  articles  of  gold  and  silver 
•  manufacture,  and  of  the  like,  and  who 
shall  keep  a  copy  of  sections  7578  and 
7579  printed  by  itself,  in  large  plain  Eng- 
lish type,  and  framed,  constantly  and 
conspicuously  suspended  in  the  office, 
barroom,  saloon,  reading,  sitting  and 
parlor  room  of  his  inn  and  also  a  copy 
printed  by  itself,  in  ordinary-sized  plain 
English  type,  posted  upon  the  inside  of 
the  entrance  door  of  every  public  sleep- 
ing-room of  his  inn,  shall  be  liable  for 
the  loss  of  any  such  articles  aforesaid, 
suffered  by  any  guest,  unless  such  guest 
shall  have  first  offered  to  deliver  such 
property  lost  by  him  to  such  innkeeper, 
for  custody  in  such  iron  safe,  and  such 
innkeeper  shall  have  refused  or  omitted 
to  take  it  and  deposit  it  in  such  safe  for 
its  custody  and  to  give  such  guest  a  re- 
ceipt therefor. 

f  Montana,     §  5165,     same    as    Arizona 
1  2920. 

gi  Nebraska,  §  3764.  No  innkeeper,  or 
hotelkeeper,  whether  individual,  part- 
nership or  corporation,  who  constantly 
has  in  his  inn  or  hotel  a  metal  safe 
or  suitable  vault  in  good  order,  and 
fit  for  the  custody  of  money,  bank  notes, 
jewelry,  articles  of  gold  and  silver  man- 
ufacture, precious  stones,  personal  orna- 
ments, railroad  mileage  books  or  tickets, 
negotiable  or  valuable  papers,  and  bul- 
lion, and  who  keeps  on  the  doors  of  the 
sleeping-rooms  used  by  guests  suitable 
locks  or  bolts,  and  on  the  transoms  and 
windows  of  said  rooms  suitable  fasten- 
ings, and  who  keeps  a  copy  of  this  sec- 
tion printed  in  distinct  type  constantly 
and  conspicuously  posted  in  not  less 
than  ten  conspicuous  places  in  all  in 
said  inn  or  hotel,  shall  be  liable  for  the 
loss  or  injury  suffered  by  any  guest,  un- 
less such  guest  has  offered  to  deliver  the 
same  to  such  innkeeper  or  hotelkeeper 
for  custody,  in  such  metal  safe  or  vault, 
and  such  innkeeper  or  hotelkeeper  has 
omitted  or  refused  to  take  it  and  deposit 
it  in  such  safe  or  vault  for  custody  and 
to  give  such  guest  a  receipt  therefor. 
Provided,  however,  that  the  keeper  of 
any  inn  or  hotel  shall  not  be  obliged  to 
receive  from  any  one  guest  for  deposit 
in  such  safe  or  vault  any  property  here- 
inbefore described  exceeding  a  total 
value  of  three  hundred  dollars,  atul  shall 


not    be    liable    for    any    excess    of    such 
property  whether  received  or  not. 

g2  Nebraska,  §  3765.  But  such  inn- 
keeper or  hotelkeeper  may  by  special 
arrangement  with  a  guest  receive  for 
deposit  in  such  safe  or  vault  any  prop- 
erty upon  such  terms  as  they  may  agree 
to  in  writing,  but  every  innkeeper  or 
hotelkeeper  shall  be  liable  for  any  loss 
of  the  above  enumerated  articles  of  a 
guest  in  his  inn  or  hotel  after  said  arti- 
cles have  been  accepted  for  deposit  if 
caused  by  the  theft  or  negligence  of  the 
innkeeper,  hotelkeeper,  or  any  of  his 
servants. 

h  North  Dakota,  §  5477,  substantially 
same  as  Arizona  fl  2920,  except  in  line 
2,  after  "innkeeper,"  insert  "or  board- 
ing-house keeper"  before  "keeps";  also 
in  lines  3  and  6  and  in  the  last  line,  after 
"guest,"  insert  "or  boarder." 

i  Oklahoma,  §  2S54,  substantially  same 
as  North  Dakota  §  5477. 

i  South  Dakota,  C.  C.  §  1383,  same  as 
North  Dakota  §  5477. 

k  Washington,  §  1203.  No  innkeeper  who 
constantly  has  in  his  inn  an  iron  safe  or 
suitable  vault  in  good  order,  and  fit  for 
the  safe  custody  of  money,  bank  notes, 
jewelry,  articles  of  gold  and  silver  man- 
ufacture, precious  stones  and  bullion, 
and  who  keeps  a  copy  of  this  section, 
printed  by  itself  in  large,  plain  Roman 
type,  and  framed,  constantly  and  con- 
spicuously suspended  in  the  office,  bar- 
room, saloon,  reading,  sitting,  and  par- 
lor room  of  his  inn,  and  also  a  copy 
printed  by  itself  in  ordinary-sized  plain 
Roman  type,  posted  upon  the  inside  of 
the  entrance  door  of  every  public  sleep- 
ing room  of  his  inn,  shall  be  liable  for 
the  loss  of  any  such  article  suffered  by 
any  guest,  unless  such  guest  has  first 
offered  to  deliver  such  property  lost  by 
him  to  such  innkeeper  for  custody  in 
such  iron  safe  or  vault,  and  such  inn- 
keeper has  refused  or  neglected  to  re- 
ceive and  deposit  such  property  in  his 
safe  or  vault,  and  to  give  such  guest  a 
receipt  therefor:  Provided,  that  all 
doors  to  rooms  furnished  to  guests  shall 
be  provided  with  slide-bolts  inside  of 
such  rooms  on  all  doors;  otherwise  he 
shall  be  liable;  but  every  innkeeper  shall 
be  liable  for  any  loss  of  the  above 
enumerated  articles  by  a  guest  in  his 
inn,  when  caused  by  the  theft  or  negli- 
gence of  the  innkeeper  or  any  of  hia 
servants. 


1306  INNKEEPERS.  [Tit.  XII. 

1  Wisconsin,  §  1725,  substantially  same  be  liable  for  the  loss  of  any  money,  jew- 
as  Missouri  §  7578.  elry  or  other  valuables  belonging  to  his 

m  Wyoming,  §  2514.     Every  landlord  or  guests    or    customers,    unless    such    loss 

keeper  of  a  public   inn  or   hotel   in   this  shall  occur  by  the  hand  or  through  the 

state,    who    shall    keep    in    his    place    of  negligence    of    such    landlord,    or    by    a 

business  an  iron  safe,  in  good  order  and  clerk    or    servant    employed    by    him    in 

suitable     for     the     purpose     hereinafter  such   hotel  or  inn;   provided,   that  noth- 

named,   and  who  shall  post  or  cause   to  ing  herein  contained  shall  apply  to  such 

be  posted  in  some  conspicuous   place   in  amount  of  money  or  other  valuables  as 

his  office,  and  on  the  inside  of  every  en-  is  usually  common  and  prudent  for  any 

trance    door    to    every    bedchamber,    the  such  guest  to  retain  in  his  room  or  about 

notice    hereinafter    mentioned,    shall    not  his  person. 

Lien  for  charges  on  baggage. 

California,  §  1861.  Hotel,  inn,  boarding-house  and  lodging-house 
keepers  shall  have  a  lien  upon  the  baggage  and  other  property  of 
value  of  their  guests,  or  boarders,  or  lodgers,  brought  into  such 
hotel,  inn,  or  boarding  or  lodging-house,  by  such  guests,  or  boarders, 
or  lodgers,  for  the  proper  charges  due  from  such  guests,  or  board- 
ers, or  lodgers,  for  their  accommodation,  board  and  lodging,  and 
room  rent,  [and]  such  extras  as  are  furnished  at  their  own  request, 
with  the  right  to  the  possession  of  such  baggage  or  other  property 
of  value,  until  all  such  charges  are  paid.     (Kerr's  Cyc.  Civ  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

Arizona,  Rev.  Stats.  1901,  If  2916.  a  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
§5054.  b  Colorado,  Rev.  Stats.  1908,  §4013.  c  Hawaii,  Laws  1907,  p.  192, 
§  1.  <J  Iowa,  Ann.  Code  1897,  §  3138.  e  Missouri,  Ann.  Stats.  1906,  §  4237. 
f  Montana,  Rev.  Codes  1907,  §  5166.  s  Nebraska,  Comp.  Stats.  Ann.  1909, 
§  3766a;  Ann.  Stats.  (Cobbey),  §6391.  b  New  Mexico,  Comp.  Laws  1897, 
§  2239.  North  Dakota,  Rev.  Codes  1905,  §  6292.  ■  Oklahoma,  Rev.  and  Ann. 
Stats.  1903  (Wilson),  §2853;  Comp.  Laws  1909  (Snyder),  §3014.  1  Oregon, 
Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot.),  §  5703.  k  South  Dakota,  Rev.  Codes 
1903,  C.  C.  §1381.  i  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  3318.  m  Utah, 
Comp.  Laws  1907,  §1402.  n  Washington,  Code  1910  (Rem.  &  Bal.),  §1201. 
o  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §3344.  p  Wyoming,  Rev.  Stats. 
1899,   §  2860. 

a  Arkansas,  §  5054.    Every  person  oper-  or  her  patrons,  boarders,  guests  or  ten- 

ating   any   hotel,    inn   or   boarding-house  ants,  for  such  boarding,  lodging  or  rent, 

in  this  state  shall  have  a  lien  upon  the  and   for  all   costs   incurred    in    enforcing 

baggage  and  personal  effects  of  all  per-  such  lien;  provided,   that  the  provisions 

sons    receiving    food,    entertainment    or  of  this  section  shall  not  apply  to  stolen 

accommodation  thereat  or  therefrom.  stock. 

b  Colorado,  §  4013.     *     *     *     The  keeper  c  Hawaii,   Laws   1907,   p.   192,    §1,   sub- 

of  any  hotel,   tavern,  or  boarding-house,  stantially  same  as  Cal.  Civ.  Code  §  1861, 

or    any    person    who    rents    furnished    or  except    at    the    opening    after     "Hotel" 

unfurnished    rooms,    shall    have    a    lien  omit  "inn,  boarding-house,  and  lodging- 

upon    the   baggage   and   furniture   of   his  house"   before  "keepers";  also,   in  line  4 


Ch.  XCII.] 


CODE  PROVISIONS. 


1307 


•omit  "inn,  or  boarding  or  lodging-house" 
before  "by  such  guests." 

d  Iowa,  §  3138,  see  note  c  to  Cai.  Civ. 
Code  §  1859. 

e  Missouri,  J  4237.  Hotel,  inn  and 
boarding-house  keepers  shall  have  a  lien 
upon  the  baggage  and  other  valuables  of 
their  guests  or  boarders  brought  into 
such  hotel,  inn  or  boarding-house  by 
such  guests  or  boarders,  and  upon  the 
wages  of  such  guests  or  boarders,  for 
their  proper  charges  due  from  such 
guests  or  boarders  for  their  accommoda- 
tion, boarding  and  lodging,  and  such  ex- 
tras as  are  furnished  at  their  request. 

t  Montana,  §  5166.  Hotelmen,  board- 
ing-house and  lodging-house  keepers 
shall  have  a  lien  upon  the  baggage  and 
other  property  of  value  brought  into 
such  hotel,  inn  or  boarding  or  lodging 
house,  by  such  guest  or  boarder  or 
lodger,  for  their  accommodation,  board 
or  lodging  and  room  rent  and  such  ex- 
tras as  are  furnished  at  their  request, 
with  the  right  of  the  possession  of  such 
baggage  or  other  property  of  value,  until 
all  such  charges  are  paid.  Provided, 
however,  that  nothing  herein  contained 
shall  be  construed  to  give  a  lien  upon 
property  sold  on  the  instalment  plan 
and  title  to  which  is  to  remain  in  the 
vendor  until  final  payment. 

g  Nebraska,  §  3766a.  The  keeper  of  any 
inn  or  hotel  whether  individual,  partner- 
ship or  corporation,  shall  have  a  lien  on 
the  baggage  and  other  property  in  and 
about  such  inn  belonging  to  or  under 
the  control  of  his  guests  or  boarders  for 
the  proper  charges  due  him  from  such 
guests  or  boarders,  for  the  accommoda- 
tion, board  and  lodging,  and  for  all 
money  paid  for  or  advanced  to  them  not 
to  exceed  the  sum  of  two  hundred  dol- 
lars, and  for  such  other  extras  as  are 
furnished  at  their  request,  and  said  inn- 
keeper or  hotelkeeper  shall  have  the 
right  to  detain  such  baggage  and  other 
property  until  the  amount  of  such 
charges  is  paid,  and  such  baggage  and 
other  property  shall  be  exempt  from  at- 
tachment, or  execution  until  such  inn- 
keeper's lien  and  the  cost  of  satisfying 
it  are  satisfied. 

h  New  Mexico,  §  2239.  Innkeepers  and 
livery  stable  keepers,  and  those  who 
^card  others  for  pay,  or  furnish  feed  or 
shelter  for  the  property  and  stock  of 
others,  shall  have  a  lien  on  the  property 
and  stock  of  such  guest  or  guests,  or  of 


those  to  whom  feed  or  shelter  has  been 
furnished  while  the  same  is  in  their  pos- 
session, and  until  the  same  is  paid. 

i  Oklahoma,  §  2853,  see  note  h  to  Cal. 
Civ.  Code  §  1S59. 

i  Oregon,  §  5703.  Hotelkeepers,  inn- 
keepers, lodging-house  keepers,  and 
boarding-house  keepers  shall  have  a  lien 
upon  the  baggage,  clothing,  jewelry,  and 
other  valuables  of  their  guests,  lodgers, 
or  boarders  brought  into  such  hotel,  inn, 
lodging-house,  or  boarding-house  by  such 
guest,  lodger,  or  boarder  for  the  reason- 
able charges  due  from  such  guests, 
lodgers,  or  boarders  for  their  accommo- 
dation, board,  or  lodging,  and  such  ex- 
tras as  are  furnished  at  the  request  of 
such  guest,  lodger,  or  boarder;  and  such 
hotelkeeper,  innkeeper,  lodging-house 
keeper,  or  boarding-house  keeper  may 
retain  and  hold  possession  of  such  bag- 
gage, clothing,  jewelry,  and  other  val- 
uables until  such  charges  be  paid. 

k  South  Dakota,  Civ.  Code  §  1381,  sub- 
stantially same  as  Oklahoma  §  2853,  see 
note  i  to  Cal.  Civ.  Code  §  1859. 

l  Texas,  Art.  3318.  Proprietors  of  ho- 
tels and  boarding-houses  shall  have  a 
special  lien  upon  all  property  or  baggage 
deposited  with  them  for  the  amount  of 
the  charges  against  them  or  their  own- 
ers if  guests  at  such  hotel  and  boarding- 
house. 

m  Utah,  §  1402.  Every  hotel,  tavern,  or 
boarding-house  keeper,  or  person  who 
lets  furnished  rooms  shall  have  a  lien 
upon  the  baggage  of  his  patrons,  board- 
ers, guests,  and  tenants  for  the  amount 
that  may  be  due  from  any  such  persons 
for  such  boarding,  lodging,  or  rent,  and 
he  is  hereby  authorized  to  hold  and  re- 
tain possession  of  such  baggage  until 
the  amount  so  due  for  boarding,  lodg- 
ing, or  rent,  or  either,  is  paid. 

n  Washington,  §  1201.  Hereafter  all  ho- 
telkeepers, innkeepers,  lodging-house 
keepers,  and  boarding-house  keepers  in 
this  state  shall  have  a  lien  upon  the  bag- 
gage, property,  or  other  valuables  of 
their  guests,  lodgers,  or  boarders 
brought  into  such  hotel,  inn,  lodging- 
house,  or  boarding-house  by  such  guests, 
lodgers,  or  boarders,  for  the  proper 
charges  due  from  such  guests,  lodgers, 
or  boarders  for  their  accommodation, 
board,  or  lodging,  and  such  other  extras 
as  are  furnished  at  their  request,  and 
shall  have  the  right  to  retain  in  their 
possession    such    baggage,    propeity,    or 


2308  INNKEEPERS.  [Tit.  XII. 

other  valuables   until   such   charges   are  have   a  Hen   upon   and   may   retain   the 

fully    paid,    and    to    sell    such    baggage,  possession  of  any  such  horses,  carriage, 

property,  or  other  valuables  for  the  pay-  harness,   mules,   cattle  or  stock  for  the 

ment    of    such    charges    in    the    manner  amount  which  may  be  due  him  for  the 

provided  in  the  next  succeeding  section  keeping,  supporting  and  care  thereof  un- 

of  this  chapter.  til  such  amount  is  paid. 

o  Wisconsin,  §3344.  Every  innkeeper  p  Wyoming,  §2860.  Any  keeper  of  a 
and  every  keeper  of  a  boarding-house  hotel  or  boarding-house  or  lodging-house 
shall  have  a  lien  upon  and  retain  the  or  restaurant  shall  have  a  lien  upon  the 
possession  of  the  baggage  and  effects  of  baggage  or  other  personal  property  of 
any  guest  or  boarder  for  the  amount  any  person  who  shall  have  obtained 
which  may  be  due  him  for  board  from  board  or  lodging  or  both,  from  such 
such  guest  or  boarder  until  such  amount  keeper,  for  the  amount  due  for  such 
is  paid;  and  every  keeper  of  a  livery  or  board  or  lodging,  and  such  keeper  is 
boarding-stable,  and  every  person  pas-  hereby  authorized  to  retain  the  posses- 
turing  or  keeping  any  horses,  carriage,  sion  of  such  baggage,  or  personal  prop- 
harness,    mules,    cattle    or    stock    shall  erty  until  said  amount  is  paid.     •     *    • 

§331.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  687 — Against  an  innkeeper,  for  loss  of  baggage. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  at  the  times  hereinafter  mentioned  the  defendant  was  the 
keeper  of  an  inn  [or  hotel]  in  ,  known  as  [here  give  the  name 
of  such  inn  or  hotel]. 

2.  That  on  the  day  of  ,  19  ,  plaintiff  was  received  in 
said  inn  [or  hotel]  by  defendant  as  a  traveler  and  guest ;  that  at  said 
time  and  place  the  plaintiff  delivered  his  baggage  to  defendant,  the 
same  consisting  of  a  trunk  [or  valise,  etc.]  ;  that  said  trunk  [or  valise, 
etc.]  contained  the  following  articles:  [Here  specify],  and  all  of  the 
value  of  $ 

3.  That  the  defendant  and  his  servants  conducted  themselves  so 
negligently  and  carelessly  in  regard  to  the  same  that  while  plaintiff 
remained  at  said  inn  [or  hotel]  as  such  traveler  and  guest  his  said 
trunk  [or  valise  or  other  thing  deposited]  and  its  contents  were  taken 
away  from  the  room  in  said  inn  [or  hotel]  occupied  by  plaintiff  as 
such  guest,  by  some  person  or  persons  to  the  plaintiff  unknown,  and 
thereby  the  same  became  wholly  lost  to  the  plaintiff,  to  his  damage 
in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  $  , 

and  plaintiff's  costs  of  this  action. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 


Ch.  XCIL]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1309 

FORM   No  688 — To    recover  for   loss   of   pocket-book   containing    money. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  defendant  was  a  hotel- 
keeper  [or  a  common  innkeeper]  at  ,  and  on  said  day,  as  such, 
he  received  and  entertained  plaintiff  as  a  guest  at  his  hotel  [or  inn] 
for  hire. 

2.  That  while  the  plaintiff  was  such  guest,  the  defendant  under- 
took, for  compensation  paid  him  by  the  plaintiff,  to  keep  safely  in 
one  of  his  sleeping-rooms  of  his  said  hotel  [or  inn]  the  clothing  and 
such  articles  of  jewelry  and  valuables  as  the  plaintiff  then  had  upon 
his  person,  and  that  the  plaintiff  thereupon  put  into  his  said  sleeping- 
room  in  said  hotel  [or  inn]  his  clothing,  his  pocket-book  containing 
$  in  money,  and  left  the  same  in  the  possession  and  charge  of 
the  defendant,  both  as  innkeeper  and  as  special  bailee  as  aforesaid. 

3.  That  while  plaintiff  was  sleeping,  his  pocket-book  and  money 
were,  by  the  negligence,  carelessness,  dishonesty,  and  improper  super- 
vision of  the  defendant  and  his  servants,  lost  and  stolen. 

4.  That  the  amount  of  the  said  money  belonging  to  the  plaintiff  so 
lost  and  stolen,  while  the  same  was  under  the  charge  of  the  defend- 
ant, was  $  and  upwards;  that  the  plaintiff  is  by  profession 
and  occupation  [state  business],  and  that  said  sum  was  such  as  he 
might  reasonably  and  properly  carry  with  him  with  reference  to  his 
circumstances  and  business. 

[Concluding  part.] 

FORM   No.  689 — Against  innkeeper,  for  refusal  to  receive  and  lodge  guest. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19     ,  the  defendant  was  the 
keeper  of  a  common  inn  [or  hotel]  at  ,  known  as  the 
Hotel,  for  the  accommodation  of  travelers. 

2.  That  on  said  date  the  plaintiff,  then  being  a  traveler,  came  to 
said  inn  [or  hotel]  and  required  the  defendant  to  receive  and  lodge 
him  as  a  guest  during  the  night  next  ensuing. 

3.  That  the  plaintiff  was  ready  and  willing,  and  offered,  to  pay 
the  defendant  his  reasonable  charges  for  such  lodging. 

4.  That  the  defendant  had  ample  room  and  accommodation  to 
receive  and  lodge  the  plaintiff  during  said  time,  but  refused  to  receive 


1310  INNKEEPERS.  [lit.  XII. 

him  or  permit  him  to  lodge  at  said  inn,  whereby  [allege  any  special 
damages],  to  his  damage  in  the  sum  of  $ 
[Concluding  part.] 

FORM   No.  690 — By  innkeeper,  for  board  and  lodging. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  received  the 
defendant  at  his  request  as  boarder  and  lodger,  and  continued  to 
board  and  lodge  him  until  the  day  of  ,  19  ,  for  which 
the  defendant  agreed  to  pay  this  plaintiff  $              per  week. 

2.  By  reason  of  the  premises,  the  defendant  is  indebted  to  the 
plaintiff  in  the  sum  of  $  ,  with  interest  from  , 

3.  [Same  as  paragraph  2,  form  No.  684.] 
[Concluding  part.] 

§332.     ANSWERS. 

FORM   No.  691 — Defense  that  plaintiff  was  not  a  guest. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Defendant  denies  that  the  plaintiff  at  the  time  alleged  in  the  com- 
plaint herein,  or  at  any  other  time  or  at  all,  was  a  guest  at  the  hotel 
[or  inn]  of  the  plaintiff. 

[Follow  with  denials  conformably  to  this  defense.] 

[Concluding  part.] 

FORM   No.  692 — Defense  where  moneys   [or  other  valuables]   lost  were  not 
deposited  with  the  innkeeper  for  safe-keeping. 

[Title  of  court  and  cause.] 

[After  introductory  part  and  denials  appropriate  to  this  defense :] 

Defendant  alleges,  that  at  the  time  mentioned  in  the  complaint 
herein,  and  for  a  long  time  prior  thereto,  he  kept  in  the  office  of  said 
inn  [or  hotel]  a  fire-proof  safe  for  use  in  the  safe-keeping  of  the 
money,  jewelry,  documents,  and  other  valuables  of  the  guests  of  said 
inn  [or  hotel]. 

And  defendant  further  alleges,  that  at  the  time  plaintiff  was 
received  as  a  guest  in  said  inn  [or  hotel] ,  and  for  a  long  time  prior 
thereto,  there  was  posted  in  a  conspicuous  place  in  each  of  the  rooms 
in  said  inn  [or  hotel],  including  the  room  occupied  by  the  plaintiff, 


Ch.  XCIII.]  ANSWERS.— CODE  PROVISIONS.  1311 

a  printed  notice,  of  which  the  following  is  a  copy :  [Rez2  insert  copy 
of  notice  such  as  is  provided  by  statute  for  limiting  liability  of  an 
innkeeper,  and  informing  guests  of  the  fact  that  a  fire-proof  safe  is 
provided  for  the  safe-keeping  of  money  and  valuables,  and  disclaim- 
ing liability  where  money  or  valuables  are  not  deposited  for  safe- 
keeping, etc.]  That  if  any  loss  of  money  [etc.]  was  suffered  by  the 
plaintiff,  as  alleged,  such  loss  was  wholly  through  the  fault  and  neg- 
ligence of  the  plaintiff  himself,  and  not  by  any  act  of  the  defendant. 
[Concluding  part.] 

For  defense  that  thing  deposited  or  alleged  to  have  been  lost  is  held  as  a  pledge, 
see  ch.  XCIII,  form  No.  695,  changing  the  said  form  to  allege  an  indebtedness  for 
accommodations  at  the  inn  (or  hotel),  and  following  with  the  averment  that  the 
thing  claimed  to  have  been  lost  or  stolen  is  held  as  a  lien  to  secure  the  payment 
of   said   charges. 


CHAPTER  XCIII. 

Bailment  or  Deposit. 

x  age 

5  333.  Code   provisions    1311 

§  334.  Complaint  [or  petition]    I318 

Form  No.  693.  For  damages  against  a  bailee  of  goods 1318 

§  335.  Answers    1318 

Form  No.  694.  Denial  of  bailment   1318 

Form  No.  695.  Defense  that  thing  deposited  is  held  as  a  pledge  1319 

§333.     CODE  PROVISIONS. 

Deposit,  kinds  of. 
California,  §  1813.     A  deposit  may  be  voluntary  or  involuntary ; 
and  for  safe-keeping  or  for  exchange.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5133.     North  Dakota,  Rev.  Codes  1905,  §  5447. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2824;    Comp.  Laws   1909 
(Snyder),  §  2985.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1352. 

Exchange  denned. 
California,  §  1804.     Exchange  is  a  contract  by  which  the  parties 
mutually  give,  or  agree  to  give,  one  thing  for  another,  neither  thing, 
or  both  things,  being  money  only.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5129.     North  Dakota,  Rev.  Codes  1905,  §  5443. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1348. 


1312  BAILMENT  OR  DEPOSIT.  [Tit.  XII. 

Deposit  for  exchange. 
California,  §  1818.     A  deposit  for  exchange  is  one  in  which  the 
depositary  is  only  bound  to  return  a  thing  corresponding  in  kind  to 
that  which  is  deposited.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5138.     North  Dakota,  Rev.  Codes  1905,  §  5452. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2829;    Comp.   Laws   1909 
(Snyder),  §  2990.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1357. 

Depositary's  obligation  to  deliver  on  demand. 
California,  §  1822.  A  depositary  must  deliver  the  thing  to  the 
person  for  whose  benefit  it  was  deposited,  on  demand,  whether  the 
deposit  was  made  for  a  specified  time  or  not,  unless  he  has  a  lien 
upon  the  thing  deposited,  or  has  been  forbidden  or  prevented  from 
doing  so  by  the  real  owner  thereof,  or  by  the  act  of  the  law,  and  has 
given  the  notice  required  by  section  eighteen  hundred  and  twenty- 
five.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5139.     North  Dakota,  Rev.  Codes  1905,  §  5453. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2830;    Comp.  Laws   1909- 
(Snyder),  §  2991.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1358. 

Demand  is  necessary  to  charge  depositary  with  breach  of  duty. 

California,  §  1823.  A  depositary  is  not  bound  to  deliver  a  thing 
deposited  without  demand,  even  where  the  deposit  is  made  for  a 
specified  time.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5140.     North  Dakota,  Rev.  Codes  1905,  §  5454. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2831;    Comp.   Laws   1909 
(Snyder),  §  2992.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1359. 

Notice  to  owner  of  adverse  proceedings. 
California,  §  1825.  A  depositary  must  give  prompt  notice  to  the 
person  for  whose  benefit  the  deposit  was  made,  of  any  proceedings 
taken  adversely  to  his  interest  in  the  thing  deposited,  which  may 
tend  to  excuse  the  depositary  from  delivering  the  thing  to  him. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5142.     North  Dakota,  Rev.  Codes  1905,  §  5456. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),    §2833;    Comp.   Laws   1908- 
(Snyder),  §2994.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §1361. 


€h.  XCIII.]  CODE  PROVISIONS.  l;jl;j 

Notice  by  depositary  to  owner  of  thing  wrongfully  detained. 

California,  §  1826.  A  depositary,  who  believes  that  a  thing  depos- 
ited with  him  is  wrongfully  detained  from  its  true  owner,  may  give 
him  notice  of  the  deposit ;  and  if  within  a  reasonable  time  afterwards 
he  does  not  claim  it,  and  sufficiently  establish  his  right  thereto,  and 
indemnify  the  depositary  against  the  claim  of  the  depositor,  the 
depositary  is  exonerated  from  liability  to  the  person  to  whom  he 
gave  the  notice,  upon  returning  the  thing  to  the  depositor,  or  assum- 
ing, in  good  faith,  a  new  obligation  changing  his  position  in  respect 
to  the  thing,  to  his  prejudice.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5143.     North  Dakota,  Rev.  Codes  1905,  §  5457. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2834;    Comp.   Laws   1909 
(Snyder),  §  2995.     South   Dakota,  Rev.  Codes  1903,  C.  C.  §  1362. 

Joint  deposits  by  two  or  more  persons. 

California,  §  1828.  When  a  deposit  is  made  in  the  name  of  two 
or  more  persons,  deliverable  or  payable  to  either  or  to  their  sur- 
vivor or  survivors,  such  deposit  or  any  part  thereof,  or  increase 
thereof,  may  be  delivered  or  paid  to  either  of  said  persons  or  to  the 
survivor  or  survivors  in  due  course  of  business.  (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and   the  difference  there  shown: 

a  Arizona,  Rev.  Stats.  1901,  H  2126.  t>  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
§  4423.  c  Montana,  Laws  1909,  p.  159,  ch.  110,  §  1.  a  Nebraska,  Comp.  Stats. 
Ann.  1909,  §  747x;  Ann.  Stats.  (Cobbey),  §3792.  e  Oregon,  Gen.  Laws  1907, 
p.   262,   §  19. 

a  Arizona,      U  2126.        Where      two      or  savings    bank,     banking    institution,     or 

more  persons  hold   an   estate,   real,   per-  trust   company,    transacting   business   in 

sonal    or    mixed,    jointly,    and    one   joint  this  state,   in  the  name  of  two  persons, 

owner  dies   before  severance,    his   inter-  payable  to  either,  or  payable  to  either  or 

est  in  said  joint  estate  shall  not  survive  the  survivor,    such   deposit,   or  any  part 

to  the  remaining  joint  owners,  but  shall  thereof,     or    any     interest     or    dividend 

descend   to   and   be  vested   in   the   heirs  thereon,   may  be  paid  to   either  of  said 

and    legal    representatives    of    such    de-  persons   whether   the  other   be   living  or 

ceased  joint  owner,  in  the  same  manner  not;    and    the    receipt   or   acquittance   of 

as  if  his  interest  had  been  severed  and  the  person  so  paid  shall  be  a  valid  and 

ascertained.  sufficient    release    and    discharge    to    the 

b  Arkansas,     §  4423.     All    survivorships  bank   for   any  payment   so   made.      (En- 

of   real   and  personal   estate   are  forever  acted  March  8,  1909.) 

abolished.  d  Nebraska,  §  747x.     When  a  deposit  in 

c  Montana,  Laws  1909,  p.  159,  chap.  110,  any   bank   in   this   state   is   made   in   the 

S  1.     When  a  deposit  has  been  made,  or  name   of  two   or   more   persons,    deliver- 

shall    hereafter    be   made,    in    any    bank,  able  or  payable  to  either  or  to  their  sur- 


1314  BAILMENT  OR  DEPOSIT.  [Tit.  XII. 

vivor  or  survivors,   such  deposit  or  any  or  interest  or  dividends  thereon,  may  be 

part  thereof,  or  increase  thereof,  may  be  paid     to     either     of     the     said     persons 

delivered  or  paid  to  either  of  said  persons  whether  the  other  be  living  or  not,   and 

or    to    the    survivor   or   survivors   in   due  the  receipt  or  acquittance  of  the  person 

course  of  business.  so  paid  shall  be  valid  and  sufficient  re- 

e  Oregon,  Gen.  Laws  1907,  pp.  262,  267,  lease  and  discharge  to  the  bank  for  any 

§  19.     *     *     *     When  a  deposit  has  been  payment  so  made.    This  section  shall  ap- 

made    or    shall    hereafter    be    made    in  ply  to  all  banking  institutions,  including 

the    name    of    two    persons,    payable    to  national  banks,  within   this  state.     (En- 

either,   or  payable   to  either  or  the  sur-  acted  February  25,  1907.) 
vivor,  such  deposit,  or  any  part  thereof, 

Depositor  must  indemnify  depositary. 

California,  §  1833.    A  depositor  must  indemnify  the  depositary : 

1.  For  all  damage  caused  to  him  by  the  defects  or  vices  of  the 
thing  deposited;  and, 

2.  For  all  expenses  necessarily  incurred  by  him  about  the  thing, 
other  than  such  as  are  involved  in  the  nature  of  the  undertaking. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5145.     North  Dakota,  Rev.  Codes  1905,  §  5459. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),    §2836;    Comp.   Laws   1909 
(Snyder),  §  2997.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  13G4. 

Depositary's  liability  for  negligence. 

California,  §  1840.  The  liability  of  a  depositary  for  negligence 
cannot  exceed  the  amount  which  he  is  informed  by  the  depositor, 
or  has  reason  to  suppose,  the  thing  deposited  to  be  worth.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5152.     North  Dakota,  Rev.  Codes  1905,  §  5466. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2843;    Comp.  Laws   1909 
(Snyder),  §  3004.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1371. 

Lien  of  depositary  for  hire, 

California,  §  1856.  A  depositary  for  hire  has  a  lien  for  storage 
charges  and  for  advances  and  insurance  incurred  at  the  request  of 
the  bailor,  and  for  money  necessarily  expended  in  and  about  the 
care,  preservation  and  keeping  of  the  property  stored,  and  he  also 
has  a  lien  for  money  advanced  at  the  request  of  the  bailor,  to  dis- 
charge a  prior  lien,  and  for  the  expenses  of  a  sale  where  default  has 
been  made  in  satisfying  a  valid  lien.  The  rights  of  the  depositary 
for  hire  to  such  lien  are  regulated  by  the  title  on  liens.  (Kerr's 
Cyc.  Civ.  Code.) 


Ch.  XCIII.J 


CODE  PROVISIONS. 


1315 


The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  In  a  lettered 
note  succeeding  and  the  difference  there  shown: 

•  Alaska,  Ann.  Codes  1907,  C.  C.  (Carter),  §277.  t>  Arizona,  Laws  1907, 
p.  59,  ch.  47,  §3.  o  Colorado,  Rev.  Stats.  1908,  §4014.  d  Hawaii,  Laws  1909, 
p.  177,  §  2.  e  Idaho,  Rev.  Codes  1909,  §  1546.  t  Iowa,  Ann.  Code  1897,  Sup. 
1907,  §  3138a-27.  s  Kansas,  Laws  1909,  p.  629,  §27.  h  Minnesota,  Laws  1907, 
p.  123,  §  1.  '  Nebraska,  Comp.  Stats.  Ann.  1909,  §  6329;  Ann.  Stats.  (Cobbey), 
§12176.  i  New  Mexico,  Laws  1909,  p.  86,  §27.  *  Oregon,  Ann.  Codes  and 
Stats.  1902  (Bel.  &  Cot),  §5704.  i  Utah,  Comp.  Laws  1907,  §1403.  m  Wis- 
consin, Laws  1909,  §  1684m-29.    n  Wyoming,  Rev.  Stats.  1899,  §  2846. 


a  Alaska,  C.  C.  §  277.  Any  person  who 
is  a  common  carrier,  or  who  shall,  at 
the  request  of  the  owner  or  lawful  pos- 
sessor of  any  personal  property,  carry, 
convey,  or  transport  the  same  from  one 
place  to  another,  and  any  person  who 
shall  safely  keep  or  store  any  grain, 
wares,  merchandise,  and  i  ersonal  prop- 
erty at  the  request  of  the  owner  or  law- 
ful possessor  thereof,  and  any  person 
who  shall  pasture  or  feed  any  horses, 
cattle,  hogs,  sheep,  or  other  livestock, 
or  bestow  any  labor,  care,  or  attention 
upon  the  same  at  the  request  of  the 
owner  or  lawful  possessor  thereof,  shall 
have  a  lien  upon  such  property  for  hia 
just  and  reasonable  charges  for  the  la- 
bor, care,  and  attention  he  has  be- 
stowed and  the  food  he  has  furnished, 
and  he  may  retain  possession  of  such 
property  until  such  charges  be  paid. 

b  Arizona,  Laws  1907,  pp.  59,  60.  §  3. 
Any  railroad  company,  express  company 
or  common  carrier,  having  any  undeliv- 
ered baggage  or  freight  in  its  possession, 
may,  after  first  giving  five  days'  notice 
in  writing  by  mail,  to  the  consignee  or 
owner  thereof,  if  known,  of  its  intention 
so  to  do,  deliver  such  baggage,  or  freight, 
to  a  warehouseman  for  storage,  upon 
such  warehouseman's  paying  to  the  rail- 
road company,  express  company  or  com- 
mon carrier,  the  amount  of  freight  or 
charges  due  thereon.  The  warehouse- 
man shall  have  a  lien  thereon  for  the 
amount  of  freight  and  charges  so  paid, 
with  interest  at  the  legal  rate,  as  well 
as  for  storage.  If  said  amounts  are  not 
paid  to  the  warehouseman  within  six 
months  after  such  freight  or  baggage  is 
so  received  by  him,  he  may  sell  the 
same,  in  the  manner  and  subject  to  the 
same  provisions  as  heretofore  pre- 
scribed for  the  sale  of  other  property  on 
which   charges   are   unpaid   for  a  period 


of  six  months.  (Enacted  March  ISth, 
1907.) 

c  Colorado,  §  4014.  Every  common  car- 
rier of  goods  or  passengers  who  shall,  at 
the  request  of  the  owner  of  any  per- 
sonal goods,  carry,  convey  or  transport 
the  same  from  one  place  to  another;  and 
any  warehouseman  or  other  person  who 
shall  safely  keep  or  store  any  personal 
property  at  the  request  of  the  owner  or 
person  lawfully  in  possession  thereof, 
shall  in  like  manner  have  a  lien  upon  all 
such  personal  property  for  his  reason- 
able charges  for  the  transportation, 
storage  or  keeping  thereof,  and  for  all 
reasonable  and  proper  advances  made 
thereon  by  him,  in  accordance  with  the 
usage  and  custom  of  common  carriers 
and   warehousemen. 

a  Hawaii,  Laws  1909,  p.  177,  §  2.  A 
warehouseman  shall  have  a  lien  upon 
any  property  stored  with  him  until  all 
reasonable  charges  thereon,  are  paid. 
Such  lien  shall  have  priority  over  other 
liens  of  any  nature  and  over  all  attach- 
ments.    (Enacted  April  28,  1909.) 

e  Idaho,  §  1546.  When  any  goods,  mer- 
chandise or  other  property  has  been 
received  by  any  railroad  or  express 
company,  or  other  common  carrier,  com- 
mission merchant,  innkeeper  or  ware- 
houseman for  transportation  or  safe 
keeping,  and  is  not  delivered  to  the 
owner,  consignee  or  other  authorized 
person,  the  carrier,  commission  mer- 
chant, innkeeper  or  warehouseman  may 
hold  or  store  the  same  with  some  re- 
sponsible person,  until  the  freight  and 
all  just  and  reasonable  charges  are  paid. 

f  Iowa,  §  3138a-27.  Subject  to  the  pro- 
visions of  section  thirty  (30),  a  ware- 
houseman shall  have  a  lien  on  goods  de- 
posited or  on  the  proceeds  thereof  in  his 
hands,  for  all  lawful  charges  for  storage 
and  preservation   of   the  goods;   also   for 


1316                                        BAILMENT  OR  DEPOSIT.                                 [Tit.  XII. 

all  lawful  claims  for  money  advanced,  in-  surrender  of  possession  shall  extinguish 

terest,    insurance,    transportation,    labor,  the  lien  herein  given.     (Amended  April  5, 

weighing,    coopering   and    other    charges  1907.) 

and  expenses  in  relation  to  such  goods;  j  Nebraska,      §  6329,      same      as      Iowa 

also   for  all  reasonable  charges   and   ex-  j  3l3Sa-27. 

penses  for  notice,  and  advertisements  of  .  Ngw    Mexic0)    Laws   1909,    pp.    86,    94, 

sale,    and    for    sale   of   the    goods    where  2?    game  as  Jowa  §  3138a_27. 

default  has  been  made  in  satisfying  the 

warehouseman's  lien.     (Sup.  1907.) 

g  Kansas,  Laws  1909,  pp.  629,  635,  §  27, 


k  Oregon,   §  5674,   same  as  Alaska  Civ. 
Code  §  277. 


same  as  Iowa  §  3138a-27.  ]  Utah>  §  1403-  Every  warehouseman  or 
h  Minnesota,  Laws  1907,  p.  123,  §1.  other  Person  who  sna11  safely  keep  or 
Whoever  at  the  request  of  the  owner  or  store  any  personal  property  at  the  re- 
legal  possessor  of  any  personal  property  Quest  of  the  owner  or  person  lawfully  in 
shall  store  or  care  for  or  contribute  in  Possession  thereof  shall  in  like  manner 
any  of  the  modes  mentioned  in  the  next  have  a  lien  uPon  a11  sucn  Property  for 
section  to  its  preservation,  care,  or  to  ™*  reasonable  charges  for  the  storage  or 
the  enhancement  of  its  value,  shall  have  keeping  thereof,  and  for  all  reasonable 
a  lien  upon  such  property  for  the  price  and  proper  advances  made  thereon  by 
or  value  of  such  storage,  care  or  contri-  him  in  accordance  with  the  usage  and 
bution,  and  for  any  legal  charges  against  custom  of  warehousemen, 
the  same  paid  by  such  person  to  any  m  Wisconsin,  Laws  1909,  §  1684m-29. 
other  person,  and  the  right  to  retain  the  same  as  Iowa  §  3138a-27. 
property  in  his  possession  until  such  lien  n  Wyoming,  §  2846,  same  as  Colorado 
is  lawfully  discharged;    but  a  voluntary  §  4014. 

Endorsement  on  negotiable  receipt  of  property  delivered. 

California,  §  1858c.  If  a  negotiable  receipt  is  issued  for  any 
property,  neither  the  person  issuing  it  nor  any  other  person  into 
whose  care  or  control  the  property  comes  must  deliver  any  part 
thereof  without  endorsing  on  the  back  of  the  receipt  in  ink,  the 
amount  and  date  of  the  delivery;  nor  can  he  be  allowed  to  make 
any  offset,  claim,  or  demand  other  than  is  expressed  on  the  face  of 
the  receipt,  when  called  upon  to  deliver  any  property  for  which 
it  was  issued.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §530.  i>  Iowa,  Ann.  Code  1897, 
Sup.  1907,  §  3138a-12.  c  Kansas,  Laws  1909,  p.  629,  §12.  a  Missouri,  Ann. 
Stats.  1906,  §7638.  e  Nebraska,  Comp.  Stats.  Ann.  1909,  §6314;  Ann.  Stats. 
(Cobbey),  §12161.  (New  Mexico,  Laws  1909,  p.  86,  §12.  s  Oklahoma,  Rev. 
and  Ann.  Stats.  1903  (Wilson),  §6759;  Comp.  Laws  1909  (Snyder),  §8838. 
h  South  Dakota,  Rev.  Codes  1903,  Pol.  Code  §  497.  i  Wisconsin,  Laws  1909, 
§  1684m-13. 

a  Arkansas,  §  530.  Warehouse  receipts  transportation  receipts  of  every  kind 
given  by  any  warehouseman,  wharfinger  given  by  any  carrier,  boat,  vessel, 
or  other  person  or  firm  for  any  goods,  railroad,  transportation  or  transfer 
wares,  merchandise,  cotton,  grain,  flour  company,  may  be  transferred  by  en- 
or  other  produce  or  commodity,  stored  dorsement  in  writing  thereon,  and  the 
or  deposited,  and  all  bills  of  lading  and       delivery  thereof  so  endorsed,  and  any  and 


Ch.  XCIII.] 


CODE  PROVISIONS. 


1317 


all  persons  to  whom  the  same  may  be 
transferred  shall  be  deemed  and  held 
to  be  the  owner  of  such  goods,  wares, 
merchandise,  cotton,  grain,  flour  or 
other  produce  or  commodity,  so  far  as 
to  give  validity  to  any  pledge,  lien  or 
transfer  given,  made  or  created  thereby, 
as  on  the  faith  thereof,  and  no  prop- 
erty so  stored  or  deposited,  as  speci- 
fied in  such  bills  of  lading  or  receipts, 
shall  be  delivered  except  on  surrender 
and  cancelation  of  such  receipts  and 
bills  of  lading;  provided,  that  all  such 
receipts  and  bills  of  lading  which  shall 
have  the  words,  "Not  negotiable," 
plainly  written  or  stamped  on  the  face 
thereof,  shall  be  exempt  from  the  pro- 
visions of  this  act. 

b  Iowa,  §  3138a-12.  Except  as  provided 
in  section  thirty-six  (36),  where  a  ware- 
houseman delivers  part  of  the  goods  for 
which  he  had  issued  a  negotiable  re- 
ceipt and  fails  either  to  take  up  and 
cancel  such  receipt,  or  to  place  plainly 
upon  it  a  statement  of  what  goods  or 
packages  have  been  delivered  he  shall 
be  liable,  to  any  one  who  purchases  for 
value  in  good  faith  such  receipt,  for 
failure  to  deliver  all  the  goods  speci- 
fied in  the  receipt,  whether  such  pur- 
chaser acquired  title  to  the  receipt  be- 
fore or  after  the  delivery  of  any  portion 
of  the  goods  by  the  warehouseman.  (En- 
acted April  1,  1907,  Sup.  1907.) 

c  Kansas,  Laws  1909,  pp.  629,  631,  §  12, 
same  as  Iowa,  Laws  1907,  p.  157,  §  12. 

d  Missouri,  §  7638.  No  public  ware- 
house or  public  elevator  receipt  shall  be 
issued  except  upon  actual  delivery  of 
grain  into  such  warehouse  or  elevator 
from  which  it  purports  to  be  issued,  and 
which  is  to  be  represented  by  the  re- 
ceipt; nor  shall  any  receipt  be  issued  for 
a  greater  quantity  of  grain  than  was 
contained  in  the  lot  stated  to  have  been 
received,  nor  shall  more  than  one  receipt 
be  issued  for  the  same  lot  of  grain  except 
in  cases  where  receipts  for  a  part  of  a 
lot  are  desired,  and  then  the  aggregate 
receipts  for  a  particular  lot  shall  cover 
that  lot  and  no  more.  In  cases  where  a 
part  of  the  grain  represented  by  the  re- 
ceipt is  delivered  out  of  such  warehouse 
or  elevator,  and  the  remainder  is  left,  a 

Jury's  PI.— 84. 


new  receipt  may  be  issued  for  such  re- 
mainder; but  such  new  receipt  shall  bear 
the  same  date  as  the  original,  and  shall 
state  on  its  face  that  it  is  the  balance 
of  receipt  of  the  original  number,  and 
the  receipt  upon  which  a  part  has  been 
delivered  shall  be  canceled  in  the  same 
manner  as  if  the  grain  it  called  for  had 
all  been  delivered.  In  case  it  be  desir- 
able to  divide  one  receipt  into  two  or 
more,  or  in  case  it  be  desirable  to  con- 
solidate two  or  more  receipts  into  one, 
and  the  warehouseman  or  elevatorman 
consents  thereto,  the  original  receipt 
shall  be  canceled  the  same  as  if  the 
grain  had  been  delivered  from  such  ware- 
house or  elevator;  and  the  new  receipts 
shall  state  on  their  face  that  they  are 
parts  of  other  receipts  or  a  consolidation 
of  other  receipts,  as  the  case  may  be; 
and  the  numbers  of  the  original  receipts 
shall  also  appear  upon  the  new  ones  is- 
sued explaining  the  change,  and  all  new 
receipts  issued  for  old  ones  canceled  as 
herein  provided,  shall  bear  the  same 
dates  as  those  originally  issued,  as  near 
as  may  be.  (Amended  Apr.  12,  1907, 
Laws  1907,  pp.  285,  290.) 

e  Nebraska,  |  6314,  same  as  Iowa 
§  3138a-12. 

f  New  Mexico,  Laws  1909,  p.  86,  §  12, 
same   as    Iowa    §  313da-12. 

g  Oklahoma,  §  6759,  substantially  same 
as  Missouri  §  7638,  except  omit  "or  pub- 
lic elevator"  in  line  2;  also  "or  elevator" 
wherever  the  words  occur  throughout; 
also  in  line  5  from  the  end  after 
"change"  insert  ";  but  no  consolidation 
of  receipts  of  dates  differing  more  than 
ten  days  shall  be  permitted,"  before 
"and  all  new." 

h  South  Dakota,  Pol.  C.  S  497.  Upon 
the  delivery  of  grain  from  store  upon 
any  receipt,  such  receipt  shall  be  plainly 
marked  across  its  face  the  word  "can- 
celed", and  shall  thereafter  be  void  and 
shall  not  again  be  put  in  circulation, 
nor  shall  grain  be  delivered  twice  upon 
the  same  receipt.  *  *  *  (Remainder 
the  same  as  Oklahoma  §  6759.) 

1  Wisconsin,  Laws  1909,  §  1684m-13, 
substantially  same  as  Iowa  i  3138a-12. 


1318  BAILMENT  OR  DEPOSIT.  [Tit.  XII. 

§334.     COMPLAINT  [OR  PETITION]. 

FORM   No.  693 — For  damages  against  a  bailee  of  goods. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  on  the  day  of  ,  19  ,  and  at  ,  plaintiff 
delivered  to  the  defendant,  and  defendant  received  from  plaintiff, 
the  following-described  goods  and  chattels,  to  wit:  [Here  describe], 
then  and  ever  since  the  property  of  plaintiff;  that  said  goods  and 
chattels  were  at  said  time  and  thereafter  of  the  value  of  $  ; 
that  said  goods  and  chattels  were,  upon  said  delivery,  to  be  by  the 
defendant  safely  and  securely  kept  for  the  plaintiff,  and  returned 
and  delivered  to  plaintiff  on  demand,  for  the  compensation  for  such 
keeping  of  $  ,  to  be  paid  to  the  defendant  by  plaintiff  upon 
return  and  delivery  thereof.  [Or  state  when  the  said  sum  was  to 
have  been  paid.] 

2.  That  plaintiff  duly  performed  all  the  conditions  of  said  contract 
on  his  part,  and  on  the  day  of  ,  19  ,  he  offered  to  pay, 
and  tendered  to  defendant,  said  sum  of  $  ,  for  said  keeping, 
and  demanded  of  him  the  return  of  said  goods  and  chattels;  that 
plaintiff  wras  then,  and  has  ever  since  been,  ready,  able,  and  willing 
to  pay  said  compensation  for  safe-keeping  of  said  goods  and  chattels, 
but  the  defendant  neglected  and  refused,  and  ever  since  has  neglected 
and  refused,  to  return  said  goods  and  chattels,  or  any  part  thereof, 
to  plaintiff. 

[If  any  loss  or  damage  has  resulted  to  said  goods,  allege  as  fol- 
lows:] That  the  defendant  so  negligently  and  carelessly  kept  said 
goods,  and  took  so  little  care  thereof,  that  by  and  through  the  care- 
lessness and  negligence  of  defendant  and  his  servants  said  goods 
were  lost  to  plaintiff  [or  were  damaged  in  this,  here  state],  all  to 
the  damage  of  plaintiff  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  $ 
and  plaintiff's  costs  of  this  action.        A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

§335.     ANSWERS. 

FORM   No.  694— Denial  of  bailment. 

[Title  of  court  and  cause.] 

Defendant,  answering  plaintiff's  complaint  [or  petition],  denies: 

That  he  ever  received  the  plaintiff's  goods,  or  any  thereof,  de- 


Ch  XCIV.]  ANSWERS,  ETC.  1319 

scribed  in  the  complaint  [or  petition]  as  bailee,  as  alleged  therein,  or 
otherwise,  or  at  all. 

FORM   No.  695 — Defense  that  thing  deposited  is  held  as  a  pledge. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

The  defendant  alleges  that  on  or  about  the  day  of  ,  19     , 

the  defendant  loaned  to  the  plaintiff  the  sum  of  $  ,  which  loan 

is  still  due  and  unpaid ;  that  the  said  property  bailed  was  delivered  by 
the  plaintiff  to  the  defendant  as  security  for  said  loan,  and  not  as  a 
bailment  as  alleged  in  said  complaint. 

[Concluding  part.] 

Form  of  findings  in  an  action  by  an  assignee,  to  compel  defendant,  a  bank,  to 
account  for  certain  deposits  made  by  assignor,  and  for  the  interest  and  profits 
accruing  thereon,  and  to  set  aside  certain  alleged  fraudulent  transfers  of  property 
by  defendant:     Cross  v.   Sacramento  Sav.  Bank,   66  Cal.  462,  6  Pac.  94,   95. 

Form  of  answer  in  an  action  to  recover  money  which  had  been  deposited  in  a 
bank  by  a  decedent  in  his  lifetime,  which,  it  was  alleged,  belonged  to  his  estate, 
and  therefore  to  the  possession  of  the  plaintiff,  by  virtue  of  his  appointment  as 
administrator:     Wichita  Nat.  Bank  v.  Maltby,  53  Kan.   567,   36  Pac.  1000,   1001. 

Form  of  petition  in  an  action  to  recover  money  deposited  with  a  bank:  Bank 
of  LeRoy  v.  Harding,  1  Kan.  App.  389,  391,   41  Pac.   680,  681. 

For  special  defenses  interposed  in  an  action  to  recover  a  bank  deposit,  see  White- 
eett  v.  People's  National  Bank,  138  Mo.  App.  81,  119  S.  W.  999,  et  seq. 

Defense  based  upon  ratification  of  transfer  of  a  bank  deposit,  interposed  in  an 
action  to  recover  such  deposit;  held,  proper  and  sufficiently  pleaded  in  Whitesett 
v.  People's  National  Bank,  13S  Mo.  81,  199  S.  W.  999,  1000,  1002. 

Defense  of  adverse  claim.— A  bailee  can  not  set  up  title  of  a  third  person  In  an 
action  brought  against  him  by  bailor,  except  by  authorization  of  that  person: 
Dodge  v.  Meyer,  61  Cal.  405.  See  Bull  v.  Houghton,  65  Cal.  422,  425,  4  Pac.  529; 
Weatherly  v.  Straus,  93  Cal.  283,  287,  28  Pac.   1045. 


CHAPTER  XCIV. 

Partnership  and  Accounting. 

Page 

§  336.  Complaints  [or  petitions]    1 320 

Form  No.  696.  For  the  dissolution  of  a  partnership,  and  for  an 

accounting  and  receivership   1320 

Form  No.  697.  For  an  accounting  after  dissolution 1321 

Form  No.  698.  To  restrain  late  partner  from  continuing  busi- 
ness    1322 

Form  No.  699.  By  one  partner  against  another,  for  breach  of 

agreement  to  pay  firm  debts   1322 

f  3S7   Annotations    2323 


1320  PARTNERSHIP  AND  A(  COUNTING.  [Tit.  XII. 

§336.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  696— For  the  dissolution  of  a  partnership,  and  for  an  accounting 
and  receivership. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  on  the  day  of  ,  19  ,  plaintiff  and  defendant 
formed  and  entered  into  a  partnership  under  articles  of  copartner- 
ship, of  which  the  following  is  a  copy:  [Here  insert  copy;  or,  if 
preferred,  plead  and  set  forth  the  same  as  an  exhibit.] 

2.  That  on  the  day  of  ,  19  ,  the  plaintiff  and  defendant 
commenced  to  carry  on  at  [here  state  location],  and  have  ever  since 
continued  to  carry  on  said  partnership  business  under  said  partner- 
ship contract  at  said  place. 

3.  That  since  the  commencement  of  said  partnership  business  the 
defendant  has  from  time  to  time  used  for  his  individual  use  and 
benefit  large  sums  of  money  from  the  receipts  and  profits  of  said 
partnership  business,  exceeding  the  proportion  thereof  to  which  he 
was  entitled,  and  has  refused,  and  still  refuses,  to  account  with  or  to 
the  plaintiff  for  the  same,  although  plaintiff  has  often  requested  and 
demanded  of  the  defendant  that  such  accounting  be  had. 

4.  Plaintiff  is  informed  and  believes,  and  upon  such  information 
and  belief  alleges,  that  the  defendant  has  received  about  the  sum 
of  $  ,  over  and  above  his  just  proportion  of  the  copartnership 
profits;  plaintiff  further  alleges,  that  the  defendant  continues  to 
collect  the  debts  due  the  copartnership,  and  that  he  continues  to 
appropriate  the  money  so  collected  to  his  individual  use. 

Wherefore,  plaintiff  prays  judgment  against  defendant:  That 
said  partnership  be  dissolved ;  that  an  accounting  be  taken  of  the 
affairs  thereof,  and  that  plaintiff  have  and  recover  of  the  defendant 
the  amount  due  the  plaintiff  from  the  defendant  as  the  same  shall 
be  by  said  accounting  determined;  that  a  receiver  be  appointed  to 
take  possession  of  the  property  and  assets  of  said  partnership,  and 
that  said  receiver  be  authorized  to  sell  the  property  of  said  partner- 
ship, and  collect  the  debts  due  the  same,  and  out  of  the  money  so 
realized  that  he  pay  the  expenses  of  said  receivership  and  the  debts 
of  said  partnership,  and  that  the  residue,  if  any,  be  divided  between 
plaintiff  and  defendant,  according  to  their  respective  interests,  under 
the  agreement  aforesaid;  and  for  such  other  and  further  relief  as  to 


Ch.  XCIV.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1321 

the  court  may  seem  just  and  equitable,  and  for  plaintiff's  costs  of 
suit  herein.  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  697 — For  an  accounting  after  dissolution. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  or  about  the  day  of  ,  19  ,  the  plaintiff 
entered  into  partnership  with  the  defendant  for  the  purpose  of  carry- 
ing on  the  business  of  ,  at  ,  for  the  term  of  years 
next  thereafter. 

2.  That  the  plaintiff  paid  in,  as  capital  to  the  said  business,  the 
sum  of  $  ,  and  the  defendant  paid  in,  as  capital,  the  sum  of  $  , 
and  on  the  day  of  ,  19  ,  the  plaintiff  and  defendant  com- 
menced said  business  as  partners,  under  the  firm  name  of  ,  and 
continued  in  the  same  until  the           day  of            ,  19     . 

3.  That  at  the  time  last  mentioned,  by  the  mutual  consent  of  said 
partners,  the  said  firm  was  dissolved. 

4.  That  at  such  time  the  defendant  agreed  with  the  plaintiff  to 
take  the  stock  on  hand  at  a  valuation  of  $  ,  and  also  to  collect 
the  debts  due  said  firm,  and  pay  the  debts  due  by  the  same,  and 
render  from  time  to  time  to  the  plaintiff,  on  demand,  full  statements 
of  the  debts  due  to  and  owing  by  said  firm,  and  the  payments  made 
on  account  thereof,  and  on  a  final  adjustment  to  pay  over  to  the 
plaintiff  his  full  share  of  the  assets  of  said  firm. 

5.  That  the  defendant,  accordingly,  proceeded  to  take  possession 
of  all  the  assets  of  said  firm,  and  has  collected  the  debts  due  to  said 
firm  and  applied  the  proceeds  to  his  own  use,  instead  of  paying  the 
debts  thereof,  and  distributing  any  balance  coming  to  the  plaintiff. 

6.  That  the  plaintiff  has  frequently  requested  the  defendant  to  give 
him  a  statement  of  the  assets  of  said  firm  which  came  to  his  hands, 
and  of  his  proceedings  in  the  premises,  but  the  defendant  has  neg- 
lected and  refused  to  render  any  such  account,  or  to  pay  over  to  the 
plaintiff  any  portion  of  said  assets. 

Wherefore,  the  plaintiff  prays  judgment,  that  the  defendant  be 
compelled  to  account  with  him  for  said  assets,  and  that  he  be  ordered 
to  pay  over  to  the  plaintiff  any  balance  found  in  his  hands  coming  to 
him,  and  for  such  other  relief  as  may  be  just,  together  with  the  costs 
of  this  suit.  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 


1322  PARTNERSHIP  AND  ACCOUNTING.  [Tit.  Xli. 

FORM   No.  698 — To  restrain  late  partner  from  continuing  business 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  and  defendant 
executed  under  their  hands  and  seals  articles  of  copartnership  for 
the  regulation  of  their  business  as  [state  what  business],  at 

2.  That  on  the  day  of  ,  19  ,  said  partnership  was  dis- 
solved by  mutual  consent,  the  plaintiff  buying  the  defendant's  inter- 
est in  said  business  and  all  the  stock  in  trade  and  good-will  thereof, 
and  the  defendant  in  consideration  of  said  purchase  agreeing  with 
the  plaintiff  not  to  carry  on  the  same  business  in  the  same  city  in 
competition  with  the  plaintiff. 

3.  That  this  plaintiff  has  duly  performed  all  the  conditions  of  said 
agreement  on  his  part  to  be  performed,  and  is  engaged  in  continuing 
said  business  at  the  same  place. 

4.  That  the  defendant  in  violation  of  said  agreement  has  opened  a 
store  [or  office],  and  is  carrying  on  the  business  of  therein, 
on  Street,  in  said  city,  within  blocks  of  the  plaintiff's 
store  [or  office],  and  in  competition  therewith,  and  threatens  to  and 
will,  unless  restrained  by  this  court,  continue  to  carry  on  the  same. 
i  5.  That  the  said  acts  of  the  defendant  in  violation  of  said  agree- 
ment are  a  continuing  injury  to  and  interference  with  the  plaintiff's 
business,  and  prevent  its  establishment  and  greatly  reduce  the  plaint- 
iff's profits,  and  can  not  be  fully  compensated  in  damages. 

Wherefore,  the  plaintiff  prays,  that  the  defendant  be  restrained 
by  injunction  from  carrying  on  or  in  any  wise  engaging  in  said  busi- 
ness in  said  city,  and  that  the  plaintiff  have  his  costs  of  this  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  699 — By  one  partner  against  another,  for  breach  of  agreement  to 
pay  firm  debts. 

(In  Gillen  v.  Peters,  39  Kan.  489 ;  18  Pac.  613.) 

[Title  of  court  and  cause.] 

Now  comes  J.  C.  Gillen,  plaintiff,  and  alleges  the  following  facts 
constituting  his  cause  of  action  against  F.  J.  Peters ;  that  is  to  say : 

1.  Said  F.  J.  Peters  and  J.  C.  Gillen,  the  plaintiff  herein,  on  or 
about  the  1st  day  of  August,  1886,  purchased  a  herd  of  horses,  to  wit, 
67  head,  together,  each  owning  an  undivided  one-half  interest,  and 


Ch.  XCIV.J  COMPLAINTS   [OR  PETITIONS]. —FORMS.  132;} 

on  or  about  the  3d  day  of  November,  1886,  plaintiff  and  defendant 
purchased  of  the  Chicago  Lumber  Company  a  bill  of  lumber,  amount- 
ing in  the  aggregate  to  $338.15,  for  which  lumber,  purchased  as 
aforesaid,  plaintiff  and  defendant  obligated  themselves  to  pay  said 
lumber  company  upon  demand.  Plaintiff  further  alleges,  that  on  the 
20th  day  of  November,  1886,  he  sold  to  defendant  his  undivided  one- 
half  interest  in  the  herd  of  horses,  and  at  the  same  time,  for  a  valua- 
ble consideration,  defendant  assumed  the  payment  of  said  lumber 
bill,  and  did  thereby  obligate  himself  to  pay  said  lumber  company  all 
of  said  indebtedness,  which  plaintiff  and  defendant  were  jointly  and 
severally  bound  to  pay  as  aforesaid.  A  copy  of  said  agreement  is 
hereto  attached,  marked  "Exhibit  A,"  and  made  part  of  this  petition.1 

2.  Plaintiff  further  alleges  that  defendant  has  wholly  neglected 
and  omitted  to  pay  said  indebtedness,  or  any  part  thereof,  and  by 
reason  of  such  neglect  and  refusal  to  pay  as  agreed  upon,  said  plaint- 
iff has  been  sued  by  the  Chicago  Lumber  Company;  that  said  claim  is 
now  due  and  unpaid. 

Wherefore,  plaintiff  asks  judgment  against  the  defendant  in  the 
sum  of  $342.85,  with  interest  at  seven  per  cent  from  the  20th  day 
of  November,  1S86,  and  costs  of  this  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

Form  of  petition  in  an  action  on  a  contract  to  pay  the  debts  of  a  partnership: 
Gillen  v.  Peters,  39  Kan.  489,  18  Pac.  613. 

Form  of  complaint  in  an  action  for  an  accounting  and  winding  up  of  a  partner- 
ship:    Tarabino  v.  Nicoli,  5  Colo.  App.  545,   546,  39  Pac.  362. 

Form  of  complaint  in  an  action  at  law  for  the  breach  of  an  executory  contract 
to  form  a  future  copartnership:  Hill  v.  Palmer,  56  Wis.  123,  124,  14  N.  W.  20, 
43   Am.   Rep.    703. 

§337.     ANNOTATIONS. — Partnership  and  accounting. 

1.  Non-joinder   of   parties   plaintiff. 

2.  Interest  of  single  partner. — To  what  extends. 

3.  Joint  action  at  law,  when  not  maintainable. 

4.  General  allegations  showing  purpose  to  refund. 
5,  6.  Nominal  parties. — Set-off. 

1.   Non-joinder    of     parties     plaintiff. —  v.   Earle  Fruit  Co.,   112  Cal.   679,   682,   45 

Where     the    evidence    shows    that    the  Pac.  7;  Dewey  v.  Parcells,  137  Cal.  305, 

plaintiff   had   a  partner   who   was   inter-  306,  70  Pac.  174.     See  Williams  v.  South- 

ested  with  him  in  the  demands  sued  upon,  ern  Pacific  R.  Co.,   110  Cal.  457,   42  Pac. 

and  who  is  not  joined  as  a  party  to  an  974. 

action,  objection  is  deemed  to  be  waived  2.   Interest  of  a  single  partner  extends 

unless  raised  in  the  pleading:     Ah  Tong  to   entire   demand   in   actions   upon   con- 

i  A  copy  of  the  agreement  is  annexed  to  the  complaint,  the  same  being  merely 
a  contract  upon  the  part  of  the  defendant  to  pay  certain  of  the  firm's  debts,  includ- 
ing the  debt  mentioned  in  the  complaint. 


1324 


AGENCY. 


[Tit.  XII. 


tract  as  well  as  In  tort,  and  one  partner 
may  recover  the  whole  amount  due  the 
firm  unless  the  defendant  pleads  non- 
joinder: Williams  v.  Southern  Pacific 
R.  Co.,   110  Cal.  457,  460,   42  Pac.   974. 

3.  A  joint  action  at  law  can  not  be 
maintained  against  partners  after  a  dis- 
solution of  the  copartnership:  Ross  v. 
Cornell,   45   Cal.  133,   136. 

4.  General  allegations  showing  the 
purpose  to  refund  or  put  the  other  party 
in  statu  quo  are  sufficient  as  a  prelim- 
inary condition.  The  rule  which  re- 
quires a  party  to  do  equity  before  he  is 
entitled  to  equity  finds  its  application 
not  in  questions  of  pleading,  nor  bjr 
what  the  plaintiff  offers  to  do  therein, 
but  in  the  form  and  frame  and  the  or- 
ders and  decrees  both  interlocutory  and 
final,  whereby  equitable  terms  are  inter- 
posed as  a  condition  precedent  to 
equitable  relief  granted:  Dalpine  v. 
Lume  (Mo.  App.),  122  S.  W.  776,  778, 
(holding   that   the   plaintiff   was   not   re- 


quired to  allege  tender  of  moneys, 
which  beyond  dispute  were  paid  to  him. 
as  an  element  in  his  action  for  disso- 
lution of  partnership  and  an  account- 
ing). See,  also,  as  to  the  rule,  Whelan 
v.  Reilly,  61  Mo.  565;  Paquin  v.  Mini- 
ken,  163  Mo.  79,  104,  106,  63  S.  W.  417, 
1092;  Haydon  v.  St.  Louis  etc.  R.  Co., 
117   Mo.   App.   76,   106,   107,   93   S.   W.   833. 

5.  Nominal  parties  as  parties  plaintiff 
need  not  be  joined  in  an  action  by  the 
firm:  Phillips  v.  Penny  wit,  1  Ark.  59; 
Wetherill  v.  McCloskey,  28  W.  Va.  195. 
A  nominal  party,  although  not  a  neces- 
sary party,  may  be  a  proper  party 
plaintiff:  Phoenix  Ins.  Co.  v.  Hamilton, 
14  Wall.    (U.   S.)    504. 

6.  A  set-off  against  a  nominal  party 
is  not  available  unless  the  same  is 
against  all  the  plaintiffs:  Jones  v.  How- 
ard, 53  Miss.  707;  cited  in  8  Am.  &  Eng. 
Ann.  Cases,  367,  370,  note  to  Lasher  v. 
Colton,  225  111.  234,  80  N.  E.  122. 


CHAPTER    XCV. 

Agency. 

Page 

338.  Complaints  [or  petitions]  1325 

Form  No.  700.  By  a  foreign  corporation  against  its  agent  and 

manager,  for  an  accounting 1325 

Form  No.  701.  By  real  estate  agent,  for  commission 1328 

Form  No.  702.  By  real  estate  agent,  for  commissions  for  sale 

executed 1329 

Form  No.  703.  Upon  special  contract  to  protect  agent  in  his 

right  to  commissions  1329 

339.  Answers    1331 

Form  No.  704.  Defense   denying  agency    1331 

Form  No.  705.  Defense  based  upon  special  contract  as  to  com- 
missions       1331 

Form  No.  706.  Defense  including  counterclaim  for  damages 
for  disobeying  principal's  orders  in  regard  to 
stock  transactions    1331 

j  340.  Annotations    13-33 


Ch.  XCV.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1325 

§338.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  700 — By   a   foreign    corporation    against    Its   agent    and    manager, 
for  an  accounting. 

(In  Great  Western  G.  Co.  v.  Chambers,  153  Cal.  307;  95  Pae.  151.)  x 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  at  all  times  mentioned  herein  the  plaintiff  was  a  corpora- 
tion duly  incorporated  and  existing  under  and  by  virtue  of  the  laws 
of  the  territory  of  Arizona,  and  had  in  all  respects  complied  with  the 
laws  of  the  state  of  California  authorizing  the  plaintiff  to  do  business 
therein. 

2.  That  heretofore,  to  wit,  on  or  about  the  month  of  January,  1902, 
the  defendant  was  employed  by  the  plaintiff  as  its  agent  and  general 
manager  of  its  business  in  Shasta  County,  California,  arid  was  placed 
in  charge  of  plaintiff's  office  at  Redding,  in  said  county;  that  the 
duties  of  the  defendant  were  to  develop  and  promote  certain  mines 
owned  by  the  plaintiff,  to  employ  laborers  and  others  for  that  pur- 
pose, receive  and  disburse  the  money  of  plaintiff  in  connection  with 
its  business,  to  keep  accurate  accounts  and  vouchers  pertaining 
thereto,  also  from  time  to  time  to  purchase  for  the  plaintiff  mining 
properties  in  the  state  of  California;  that  defendant  accepted  said 
employment  and  undertook  to  carry  on  the  business  of  the  plaintiff 
as  its  agent  and  trustee,  as  aforesaid. 

That  the  defendant  during  the  period  of  said  employment,  extend- 
ing from  the  aforesaid  date  up  to  about  the  1st  day  of  September, 
1902,  received  from  the  plaintiff,  as  such  agent  and  trustee,  large 
sums  of  money  from  time  to  time,  and  was  also  intrusted  with  the 
duty  of  purchasing  certain  mining  properties ;  and  that,  for  the  pur- 
pose of  making  such  purchases,  a  large  amount  of  money  was  placed 
in  his  hands  for  the  purpose  of  being  paid  thereon.  Plaintiff  avers 
that  the  defendant,  unmindful  of  his  duties  in  the  premises,  and 

l  The  sufficiency  of  this  complaint  (form  No.  700),  although  not  passed  upon  on 
appeal,  was  tested  by  demurrer  in  the  trial  court  upon  general  grounds,  and  upon, 
the  special  grounds  that  the  same  was  uncertain,  ambiguous,  and  unintelligible, 
and  that  it  improperly  united  several  causes  of  action,  upon  all  of  which  grounds 
the  court  overruled  the  demurrer:  From  the  record  in  Great  Western  G.  Co.  v. 
Chambers,    153    Cal.   307,    95   Pac.    151. 

In  a  later  appeal  it  was  held  that  the  facts  alleged  In  this  complaint  are  suffi- 
cient as  declaring  upon  a  cause  of  action  arising  upon  the  purchase  by  defendant 
as  agent  for  and  on  behalf  of  the  plaintiff:  Great  Western  Gold  Co.  v.  Chambers, 
155  Cal.  364,   101   Pac.   6,  7. 


1326  AGENCY.  [Tit.  XII. 

with  the  intention  and  purpose  of  defrauding  plaintiff,  failed  and 
neglected  to  keep  accurate  and  proper  books  of  account  showing  the 
amount  of  moneys  received  by  him  and  the  disbursements  made,  and 
failed  and  neglected  to  take  proper  vouchers  and  receipts  for  money 
expended,  and  alleges  that  defendant  converted  a  large  portion  of 
said  money  to  his  own  use. 

That  the  plaintiff  has  made  repeated  demands  upon  defendant  for 
the  original  books,  papers,  and  vouchers  pertaining  to  the  business 
transactions  by  him  for  the  plaintiff,  but  the  defendant  has  wrong- 
fully refused  and  neglected,  and  still  refuses  and  neglects,  to  render 
proper  accounts  of  his  doings  in  the  premises;  that  the  accounts 
between  plaintiff  and  defendant  are  complicated  in  their  nature, 
and  that,  owing  to  the  fact  that  all  of  the  books  and  papers  kept  by 
the  defendant  are  in  his  possession  and  under  his  control,  the  plaintiff 
is  unable  at  this  time  to  set  out  more  particularly  the  matters  and 
things  hereinbefore  referred  to,  but  expects  to  show  the  same  by 
the  books  and  papers  in  the  possession  and  under  the  control  of  said 
defendant,  and  make  discovery  thereof  by  said  books  and  papers 
and  the  testimony  of  said  defendant. 

3.  That  heretofore,  to  wit,  on  or  about  the  1st  day  of  September, 
1902,  the  defendant  was  duly  elected  and  qualified  as  vice-president 
and  director  of  the  plaintiff  company ;  and  also  on  or  about  the  said 
date  was  duly  appointed  and  constituted  general  manager  of  the 
business  of  plaintiff  in  the  state  of  California,  and  that  the  plaintiff's 
property  in  said  state  was  placed  in  his  possession  as  agent  and 
trustee  for  the  plaintiff;  [here  follow  averments  to  the  same  effect 
as  the  averments  in  the  preceding  paragraph  relating  to  the  duties 
of  defendant  as  such  director,  receipts  of  money  by  him,  misapplica- 
tion of  funds,  and  conversion  of  the  same  to  his  own  use,  etc.;]  that 
on  or  about  the  20th  day  of  September,  1902,  defendant,  while  acting 
as  agent  and  trustee  for  the  plaintiff  as  aforesaid,  was  directed  to 
proceed  to  Salt  Lake  City,  and  there  purchase  for  the  plaintiff,  or 
procure  a  contract  therefor,  a  certain  mine  known  as  the  After- 
thought, in  Shasta  County,  California,  and  procure  the  same  as 
cheaply  as  possible,  not  paying  more  therefor  than  the  sum  of 
$150,000;  that  the  defendant,  acting  upon  said  instructions,  and  as 
the  agent  and  trustee  for  the  plaintiff,  proceeded  to  Salt  Lake  City, 
and  while  there,  for  the  purpose  of  cheating  and  defrauding  the 
plaintiff  in   connection  with  the  purchase  of  said  mining  claims, 


Ch.XCV.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  ];}27 

entered  into  an  agreement  and  conspiracy  with  one  W.  F.  Snyder 
and  one  Mitchell,  whereby  the  said  Snyder  was  to  take  the  title  to 
said  mines  from  one  Tarbet  for  the  sum  of  $90,000,  and  that  there- 
upon said  Snyder  was  to  get  an  approval  contract  for  the  purchase 
of  said  mines  of  the  said  tenor  and  effect  to  the  plaintiff  herein  for 
the  sum  of  $150,000;  that  the  plaintiff  herein,  without  knowledge  of 
said  agreement  and  conspiracy,  accepted  the  contract  from  said 
Snyder  at  the  suggestion  and  direction  of  defendant,  and  paid 
thereon  to  said  Snyder  the  sum  of  $20,000  as  the  first  payment,  the 
balance  of  said  $150,000  to  be  paid  as  follows :  $90,000  on  the  20th 
day  of  September,  1903;  $40,000  on  the  20th  day  of  March,  1904; 
that  said  Snyder,  having  received  said  money,  paid  $10,000  upon  the 
contract  which  he  had  previously  made  regarding  the  said  property 
with  said  Tarbet,  and  that  the  remaining  $10,000  was  divided  be- 
tween said  Snyder,  said  Mitchell,  and  the  defendant  herein,  and 
plaintiff  is  informed  and  believes,  and  so  charges  the  facts  to  be, 
that  defendant  received  a  large  portion  thereof,  the  exact  amount 
plaintiff  is  at  this  time  unable  to  state,  but  expects  to  show  the  same 
and  make  discovery  thereof  by  the  books  and  papers  in  possession 
and  under  the  control  of  said  parties,  and  by  the  testimony  of  said 
parties;  that  owing  to  the  aforesaid  facts  plaintiff  is  unable  at  this 
time  to  set  forth  more  specifically  said  transactions ;  that  thereafter 
this  plaintiff  paid  upon  said  contract  to  the  said  Snyder  the  sum  of 
$110,000  in  full  payment  and  discharge  of  the  same,  making  in  all 
the  sum  of  $130,000  paid  thereon ;  that  thereby  there  was  lost  to  this 
plaintiff,  and  plaintiff  was  damaged,  by  reason  of  said  fraudulent 
agreement  of  conspiracy  and  acts  upon  the  part  of  said  defendant, 
in  the  full  sum  of  $40,000.  [Here  follow  averments  as  to  other  pur- 
chases made  by  defendant  in  his  capacity  as  said  trustee,  and  of 
secret  profits  derived  therefrom,  and  the  fraudulent  conversion  of 
moneys  representing  said  secret  profits  to  defendant's  own  use,  etc.] 

That  the  plaintiff  is  informed  and  believes,  and  so  charges  the 
facts  to  be,  that  the  defendant,  during  the  period  aforesaid,  and 
while  acting  as  the  agent  and  trustee,  director,  vice-president,  and 
general  manager  of  the  plaintiff  company  aforesaid,  received  and 
converted  to  his  own  use,  in  his  capacities  aforesaid,  the  sum  of  at 
least  $40,000. 

Wherefore,  plaintiff  prays :  That  an  accounting  be  ordered  herein 
of  all  the  matters  and  things  hereinbefore  set  forth,  and  that  the  cor- 


1328  AGENCY.  [Tit.  XII. 

rect  amount  due  from  the  defendant  to  the  plaintiff  upon  said  account- 
ing be  ascertained  and  settled,  and  a  judgment  be  entered  for 
plaintiff  for  the  amount  so  ascertained  to  be  due  from  the  defendant 
to  the  plaintiff;  and  that  the  defendant  be  ordered  and  decreed  to 
convey  to  the  plaintiff  and  to  assign  to  it  any  real  estate  in  his  pos- 
session and  under  his  control  belonging  to  the  plaintiff,  or  to  which 
the  plaintiff  may  be  entitled  upon  a  hearing  hereof,  and  also  all  con- 
tracts for  the  purchase  of  real  estate  entered  into  by  the  defendant 
in  his  own  name  for  or  on  behalf  of  the  plaintiff ;  and  that  all  matters 
and  things  connected  with  the  agency  and  trusteeship  of  the  defend- 
ant while  acting  in  that  capacity  for  the  plaintiff  be  settled,  ascer- 
tained, and  determined,  and  a  decree  entered  therefor;  and  that 
plaintiff  have  judgment  for  costs  herein,  and  for  such  other  and 
further  relief  as  to  this  court  may  seem  just  and  equitable  in  the 
premises.  Bush  &  Perry, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  701 — By  real  estate  agent,  for  commissions. 

(In  Greenwood  v.  Burton,  27  Neb.  808;  44  N.  W.  28.) 
[Title  of  court  and  cause.] 

1.  That  on  or  about  the  1st  day  of  September,  1888,  the  plaintiff 
entered  into  the  service  of  the  defendant,  G.,  at  his  request,  as  agent, 
to  trade,  exchange,  and  dispose  of  certain  land  described  as  follows : 
[Here  described]  ;  that  plaintiff  negotiated  the  sale  of  said  land 
belonging  to  the  defendant,  G.,  upon  the  terms  and  conditions  and 
at  the  time  agreed  upon  and  suggested  by  defendant. 

2.  That  the  purchaser  procured  by  the  plaintiff  for  the  defendant's 
aforesaid  land  was  then  and  there  willing, ready, and  able  to  complete 
the  purchase  of  the  defendant's  real  estate  upon  the  terms  and  condi- 
tions fixed  and  agreed  upon  by  the  defendant  with  the  plaintiff. 

3.  That  the  plaintiff  has  duly  performed  all  the  conditions  of  said 
contract  on  his  part  to  be  performed. 

4.  That  defendant  has  not  paid  the  plaintiff  the  said  sum,  or  any 
part  thereof,  for  the  aforesaid  services,  and  there  is  now  due  the 
plaintiff  from  the  defendant  therefor  the  sum  of  $50,  with  interest 
on  the  same  from  September  1,  1888. 

[Prayer,  etc.]  A.  B.,  Attorney  for  plaintiff. 


Ch.XCV.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1329 

FORM   No.  702 — By  real  estate  agent,  for  commissions  for  sale  executed. 
(In  Griffith  v.  Woolworth,  28  Neb.  715;  44  N.  W.  1137.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  or  about  the  day  of  ,  19  ,  the  defendant 
employed  the  plaintiff  to  find  a  purchaser  for  and  to  sell  for  the 
defendant  certain  real  property,  described  as  follows:  [Here  de- 
scribed], at  a  price  and  upon  the  terms  stated  and  fixed  by  defendant, 
and  defendant  thereupon  agreed  to  pay  the  plaintiff  for  his  services, 
and  as  his  compensation  for  finding  such  purchaser  and  making  such 
sale,  the  sum  of  $600. 

2.  That  about  the  day  of  ,  19  ,  this  plaintiff  found  a 
purchaser,  and  sold  to  him  for  the  defendant  the  said  premises  at  the 
price  and  upon  the  terms  stated  and  fixed  by  the  defendant,  and 
thereupon  the  defendant  became  indebted  to  the  plaintiff  in  the  sum 
of  $600  for  said  services  of  plaintiff  in  finding  such  purchaser  and 
making  said  sale,  and  there  is  now  due  from  the  defendant  to  the 
plaintiff  for  said  services,  as  his  said  compensation  therefor,  the  sum 
of  $600,  with  interest  from  the            day  of  ,  19     . 

[Concluding  part.] 

FORM   No.  703 — Upon  special  contract  to  protect  agent  in  his  right  to  com- 
missions. 

(In  Myers  v.  Holton,  9  Cal.  App.  114;  98  Pac.  197.) 
[Title  of  court  and  cause.] 

Comes  now  the  plaintiff  in  the  above-entitled  cause,  and  complain- 
ing of  the  defendant,  alleges : 

1.  That  the  plaintiff  resides,  and  is  engaged  in  the  real  estate  busi- 
ness, in  the  city  of  Los  Angeles,  Los  Angeles  County,  California. 

2.  That  on  the  27th  day  of  July,  1905,  D.  Hutton,  for  a  valuable 
consideration,  executed  and  delivered  to  the  plaintiff  herein  an  option 
to  purchase  the  land  hereinafter  referred  to,  together  with  certain 
other  property,  which  said  option  is  in  the  words  and  figures  fol- 
lowing, to  wit:  "Searchlight,  Nev.,  July  27,  1905.  I,  D.  Hutton,  in 
consideration  of  $1.00  do  hereby  give  Lee  R.  Myers,  or  his  assigns, 
an  option  to  buy  my  Colorado  River  ranch,  consisting  of  160  acres 
desert  claim,  and  160  acres  homestead  claim,  and  one  store  and  a 
business  lot  in  Searchlight,  Nevada,  free  and  clear  of  encumbrance, 


1330  AGENCY.  •  [Tit.  XII. 

for  a  consideration  of  $8,000  net  to  me.     This  option  to  be  good  for 
sixty  days  from  this  date.     D.  Hutton." 

3.  That  thereafter,  to  wit,  on  the  1st  day  of  August,  1905,  the 
defendant,  G.  L.  Holton,  executed  and  delivered  to  the  plaintiff,  in 
the  said  city  of  Los  Angeles,  for  a  valuable  consideration,  the  follow- 
ing agreement,  to  wit:  "Los  Angeles,  Cal.,  August  1,  1905.  This 
certifies  that  L.  R.  Myers,  real  estate  agent,  introduced  us  by  letter 
to  D.  Hutton  of  Searchlight,  Nevada,  and  that  we,  B.  W.  Gerhart  and 
G.  L.  Holton,  are  to  see  Mr.  D.  Hutton  and  look  at  his  Colorado  River 
ranches  with  a  view  of  buying  the  property.  We  agree  to  protect 
the  said  L.  R.  Myers  in  the  matter  of  his  commission,  if  we,  or  our 
assigns,  purchase  the  said  property.     G.  L.  Holton." 

4.  That  thereafter,  to  wit,  on  or  about  the  1st  day  of  September, 
1905,  the  defendant  and  the  said  D.  Hutton  entered  into  an  agree- 
ment of  sale  wherein  the  said  Hutton  agreed  to  sell  to  the  defendant 
the  property  referred  to  in  the  foregoing  instruments,  and  the  defend- 
ant is  now  in  the  possession  of  the  said  property  under  said  agree- 
ment, and  is  now,  with  the  said  Gerhart,  the  owner  of  the  said  prop- 
erty. 

5.  That  the  agreed  purchase  price  of  the  said  property  was  the  sum 
of  $12,000,  of  which  the  sum  of  $8,000  was  to  be  paid  to  the  said  D. 
Hutton  and  the  remaining  $4,000  was  to  be  paid  to  the  plaintiff. 

6.  That  plaintiff  is  informed  and  believes,  and  upon  such  informa- 
tion and  belief  alleges,  that  the  said  sum  of  $8,000,  to  be  paid  as 
aforesaid  to  said  D.  Hutton,  has  been  paid. 

7.  That  the  said  sum  of  $4,000,  to  be  paid  to  plaintiff  as  hereinbe- 
fore alleged,  has  not  been  paid,  nor  any  part  thereof,  except  the  sum 
of  $500 ;  and  that  the  sum  of  $3,500,  to  be  paid  by  the  defendant  to 
the  plaintiff,  remains  wholly  due,  owing,  and  unpaid. 

Wherefore,  plaintiff  prays  judgment  against  the  defendant  for  the 
sum  of  $3,500,  and  for  costs  of  suit. 

Andrew  G.  Park,  and 
Theodore  Park, 
[Verification.]  Attorneys  for  plaintiff. 


Ch.  XCV.]  ANSWERS— FORMS.  1331 

§339.     ANSWERS. 

FORM  No.  704 — Defense  denying  agency. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

For  a  separate  defense  against  the  complaint  of  plaintiff  herein, 
defendant  denies  that  ,  the  party  alleged  in  said  complaint  to 

have  executed  said  deed  [or  other  instrument], was  defendant's  agent 
for  any  purpose,  or  that  said  had  authority  to  make  or  exe- 

cute or  deliver  any  deed  [or  other  instrument]  conveying  any  right, 
title,  or  interest  in  or  to  the  property  described  in  the  complaint 
herein. 

[Prayer,  etc.]  C.  D.,  Attorney  for  defendant. 

[Verification.] 

FORM   No.  705 — Defense  based  upon  special  contract  as  to  commissions. 
(In  Beatty  v.  Russell,  41  Neb.  321;  59  N.  W.  919.) 

[Title  of  court  and  cause.] 

[After  introductory  part :] 

Defendant  denies  that  he  employed  the  plaintiff  to  sell  the  land 
referred  to  in  said  petition,  but  avers  the  fact  to  be  that  the  firm  of 
G.  &  B.,  composed  of  G.  H.  G.  and  the  plaintiff,  as  partners,  were 
employed  to  sell  said  farm  upon  the  terms  that  the  defendant  was 
to  receive  $4,800  clear  of  all  commissions  for  the  land,  and  the  said 
G.  &  B.  were  to  have  all  over  said  $4,800  as  their  commission ;  and  if 
they  sold  the  land  for  only  $4,800  they  were  to  have  no  commission 
from  the  defendant.  Defendant  further  avers  that  said  land  was 
sold  for  $4,800,  and  no  more,  and  therefore  no  commission  whatever 
is  due  the  plaintiff. 

[Prayer,  etc.]  C.  D.,  Attorney  for  defendant. 

FORM   No.  706 — Defense  including  counterclaim  for  damages  for  disobeying 
principal's  orders  in  regard  to  stock  transactions. 

(In  Galigher  v.  Jones,  129  U.  S.  193;  9  Sup.  Ct.  335;  32  L.  ed.  658.) 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

1.  That  plaintiff  is  a  banker  at  Salt  Lake  City,  and  that  the 
defendant  has  had  for  two  years  last  past  an  account  with  him  as 
such ;  that  the  plaintiff,  at  the  defendant 's  request,  and  as  his  agent, 
bought,  or  caused  to  be  bought,  at  the  Mining  Stock  Exchange  Board 


1332  AGENCY.  [Tit.  XII. 

of  San  Francisco,  California,  certain  mining  stocks  for  and  on  account 
of  this  defendant,  and  at  various  times  thereafter  in  1877  and  1878, 
on  the  order  and  at  the  direction  of  this  defendant,  and  as  his  agent 
aforesaid,  bought  and  sold  mining  and  other  stocks  up  to  about  the 
date  of  the  filing  of  said  complaint;  that  at  divers  times  during  and 
between  the  dates  above  specified  this  defendant  paid  into  plaintiff's 
bank  sums  of  money  on  account  of  said  purchases,  and  to  the  credit 
thereof,  and  which  were  so  applied  by  plaintiff  on  defendant's  order. 
2.  Defendant  denies  that  at  the  date  of  the  filing  of  the  complaint 
the  sum  of  five  thousand  dollars,  or  any  sum,  was  due  to  the  plaintiff 
on  said  account,  or  on  any  account,  for  loans  or  advances  from 
plaintiff  to  defendant.    Defendant  alleges  that  it  was  agreed  between 
the  plaintiff  and  this  defendant,  in  the  transaction  of  the  business  of 
purchases  of  said  stock  by  the  plaintiff,  that  the  same  were  made  on 
defendant's  credit,  and  that  said  stock  was  bought,  and  was  to  be 
held,  subject  to  defendant's  order  at  all  times,  this  defendant  agree- 
ing to  pay  said  plaintiff  commissions  for  his  services  as  agent  and  an 
agreed  rate  of  interest  on  any  advances  he  might  make;  that  at  no 
time  had  the  plaintiff  any  authority  to  either  buy  or  sell  stock  on 
defendant's  account  except  by  his  order. 

And  by  way  of  counterclaim  the  defendant  alleges : 
1.  That  on  the  13th  day  of  November,  1878,  being  at  Virginia  City, 
he  ordered  the  plaintiff,  who  was  then  at  Salt  Lake  City,  by  tele- 
graphic dispatch,  to  sell  certain  mining  stocks  then  in  his  hands  as 
defendant's  agent,  to  wit,  320  shares  of  Justice  stock,  worth  $9  per 
share ;  50  shares  of  Alta  stock,  worth  $8  per  share ;  200  shares  of  Tip 
Top  stock,  worth  $1.60  per  share;  and  to  invest  the  proceeds  in  North 
Bonanza  stock,  another  mining  stock  on  the  same  board,  and  which 
the  defendant  had  been  investigating ;  that  the  plaintiff  received  this 
dispatch  in  ample  time  to  make  the  transaction  as  directed  on  that 
day,  but  refused  and  neglected  to  do  so ;  that  the  defendant  relied 
on  its  being  done,  and  agreed  with  another  party  to  sell  the  stock  he 
had  ordered  purchased;  that  the  plaintiff  did  not  give  notice  to  the 
defendant  of  his  refusal  to  comply  with  said  order  until  several  days 
afterwards,  and  then  by  letter;  that  afterwards,  and  without  any 
order  or  orders  so  to  do,  the  plaintiff  sold  said  Alta  stock  at  $7.75 
per  share,  said  Justice  stock  at  $4.40  per  share,  and  said  Tip  Top 
stock  at  $1.25  per  share,  making  a  net  loss  to  defendant  of  $1,200; 
that  the  said  North  Bonanza  stock  was  worth  more  than  $2  per  share 


Ch.  XCV.]  ANSWERS.— ANNOTATIONS.  I333 

on  the  said  date,  and  that  within  five  days  thereafter  it  advanced  to 
$5.60  per  share,  which  latter  amount  per  share  the  defendant  would 
have  realized  if  plaintiff  had  complied  with  said  order,  whereby  the 
defendant,  through  said  disobedience  of  orders  in  regard  to  said 
last-named  stock,  lost  the  sum  of  $6,125. 

Defendant  further  alleges,  that  in  the  month  of  November,  1878, 
the  plaintiff,  as  defendant's  agent,  held  for  defendant  600  shares  of 
the  mining  stock  known  as  Challenge  stock,  and,  without  his  consent, 
on  the  27th  and  29th  of  said  month  of  November,  sold  the  same  for 
his,  the  plaintiff's,  own  use,  to  the  damage  of  defendant  in  the  sum 
of  $2,850. 

3.  That  on  the  22d  day  of  November,  1877,  the  plaintiff  held  for 
the  defendant,  as  his  agent  as  aforesaid,  50  shares  of  mining  stock 
known  as  Ophir  stock,  worth  at  that  date  $37.50  per  share,  and  on 
that  day  represented  to  defendant  that  he  had  sold  said  stock  for 
defendant,  and  so  reported  to  him,  when  in  fact  he  had  not  sold  said 
stock,  but  continued  to  hold  the  same,  and  afterwards  sold  it  for 
$100  per  share,  the  advance  amounting  to  $3,125,  which  is  justly  due 
from  the  plaintiff  to  the  defendant. 

[Prayer,  etc.] 

C.  D.,  Attorney  for  defendant  and  counterclaimant. 

[Verification.] 

Form  of  complaint  in  an  action  by  a  broker  for  commissions:  Rogers  v.  Duff, 
97  Cal.  66,   67,  31  Pac.   836. 

Form  of  findings  of  fact  and  of  law  in  an  action  to  recover  commission  for  the 
sale  of  land,  by  the  plaintiff,  who  procured  a  purchaser  in  compliance  with  the 
terms  of  a  contract  made  with  the  defendant:  Robinson  v.  Kindley,  36  Kan.  157, 
12  Pac.   587. 

§340.     ANNOTATIONS.— Agency. 

1.  Distinction  between  contract  to  find  purchaser  and  contract  to  sell. 

2.  Parol  contract  to  find  purchaser. 

3.  Oral  offer  to  buy. 

4.  Formal  tender  of  purchase  price. — When  unnecessary. 

5.  Action  to  recover  commission. — Complaint  held  sufficient. 

6.  Agency. — When  admitted  by  the  pleadings. 

7.  Departure  by  agent  from  his  authority. 

8,  9.  Ratification  by  municipal  corporation  of  unauthorized  agent's  acts. Plead- 
ing ratification. 
10.  Agent  suing  alone. 

1.  Distinction      between      contract     to  the    following    cases    the    right    of    the 

■find    purchaser   and    contract   to   sell. — A  agent   to    his    commissions    on    finding   a 

distinction    is    made    between    the    cases  purchaser    ready,    willing,    and    able    to 

where    the    plaintiff's    employment    was  purchase  was  upheld:    Finnerty  v.  Fritz 

merely    to    find    a    purchaser    and    cases  5   Colo.   174;   Smith  v.   Fairchild,   7  Colo, 

where   the  employment  was   to   sell.     In  510,    4   Pac.   757;   Buckingham   v.   Harris 

Jury's  PL— 85. 


1334 


AGENCY. 


[Tit.  XII. 


10  Colo.  455,  15  Pac.  817,  818;  Neilson 
v.  Lee,  60  Cal.  555;  Betz  v.  Williams  & 
White  L.  &  L.  Co.,  46  Kan.  45,  26  Pac. 
456,  457;  Neiderlander  v.  Starr,  50  Kan. 
772,  33  Pac.  592,  (reversing  in  effect 
Stewart  v.  Fowler,  37  Kan.  677,  15  Pac. 
918);  Stewart  v.  Fowler,  53  Kan.  537, 
36  Pac.  1002,  (modifying  former  decision 
in  37  Kan.  677,  15  Pac.  918,  holding  that 
the  language  in  the  original  decision 
should  be  modified  and  limited,  and  that 
where,  at  the  time  of  the  sale,  the  pur- 
chaser was  willing  and  able  to  carry 
out  the  contract,  the  subsequent  default 
in  the  payment  of  a  portion  of  the  pur- 
chase price  would  not  deprive  the  agent 
of  the  right  to  his  commissions) ;  Bell 
v.  Kaiser,  50  Mo.  150;  Hart  v.  Hoffman, 
44  How.  Pr.  168;  Moses  v.  Bierling,  31 
N.  Y.  462;  Lloyd  v.  Matthews,  51  N.  Y. 
124;  Mooney  v.  Elder,  56  N.  Y.  238;  Doty 
v.  Miller,  43  Barb.  N.  Y.  529;  Fisk  v. 
Henarie,  13  Ore.  156,  9  Pac.  322;  Dela- 
plain  v.  Turnley,  44  Wis.  31.  In  the 
following,  the  right  of  the  agent  to  the 
commissions  depended  upon  a  consum- 
mated sale  under  agreement  with  the 
owner:  Helling  v.  Darby,  71  Kan.  107, 
79  Pac.  1073,  1074,  (where  buyer  and 
seller  were  not  brought  together  by  the 
agent). 

2.  Parol  contract  to  find  purchaser. — 
A  parol  contract  is  sufficient  for  the 
employment  of  a  real  estate  agent  to 
find  a  purchaser  ready,  able,  and  will- 
ing to  purchase,  and  such  contract  is 
not  within  the  statute  of  frauds:  Long 
v.  Thompson,  73  Kan.  76,  84  Pac.  552, 
(to  recover  commissions  for  finding  pro- 
posed purchaser). 

3.  Oral  offer  to  buy. — When  an  agent 
under  an  authority  to  sell  finds  and 
brings  to  the  owner  a  party  ready,  able, 
willing,  and  anxious  to  buy,  and  who 
orally  offers  in  good  faith  to  buy  at  the 
owner's  price,  named  in  the  written 
contract,  the  agent  is  entitled  to  his 
commission  as  agreed:  Carlin  v.  Lifur, 
2  Cal.  App.  590,  592,  84  Pac.  Rep.  292, 
(to  recover  commission  on  sale  of  real 
property). 

4.  A  formal  tender  of  the  price  Is  un- 
necessary until  the  owner  should  evince 
some  disposition  to  accept  it:  Carlin  v. 
Lifur,  2  Cal.  App.  590,  592,  84  Pac.  292, 
(to  recover  commission  on  sale  of  real 
property). 

5.  Action  to  recover  .commission. — 
Complaint     held     sufficient. — The  follow- 


ing averments  In  the  pleading  in  an. 
action  by  an  agent  to  recover  commis- 
sion from  the  owner  of  property  for 
finding  a  purchaser  ready,  willing,  and 
able  to  purchase  have  been  held  suffi- 
cient as  stating  a  cause  of  action. 

After  preliminai-y  averments,  the  peti- 
tion  reads : 

"(2)  That  on  or  about  the  day  of 

Jaily,  1902,  defendant  employed  plaint- 
iffs to  procure  a  purchaser  for  cer- 
tain tracts  of  land  owned  by  him  and 
situate  in  the  counties  of  Elk  and  Cow- 
ley, in  the  state  of  Kansas,  for  the  sum 
of  $7,300,  and  defendant  then  and  there- 
promised  and  agreed  to  pay  to  the 
plaintiffs  the  sum  of  $300  for  procuring 
a  purchaser  at  the  sum  aforesaid,  said 
sum  to  be  paid  upon  such  terms  and  in 
such  manner  as  could  be  mutually 
agreed  upon  by  the  purchaser  so  pro- 
cured by  the  plaintiffs  and  the  defend- 
ant. 

"(3)  That  in  pursuance  of  the  said 
agreement,  verbally  had  between  the 
plaintiffs  and  the  defendant,  the  plaintiffs 
procured  a  purchaser  for  the  defend- 
ant's lands  and  took  such  purchaser  to 
the  defendant,  and  such  purchaser  so  as 
aforesaid  procured  by  the  plaintiffs  for 
the  defendant's  said  lands  and  the  de- 
fendant then  and  there  agreed  upon  the 
sale  of  the  said  lands  for  the  aforesaid 
sum  of  $7,300,  and  agreed  upon  the  times 
and  terms  of  the  payment  thereof,  and 
that  said  purchaser  was  ready,  able,  and 
willing  to  pay  the  said  price  for  the  said 
lands.  Said  agreement  of  sale  between 
the  purchaser  so  as  aforesaid  procured 
and  said  defendant,  as  to  the  price  of 
the  said  lands  and  the  terms  of  pay- 
ment for  the  same,  being  verbal,"  etc.: 
Long  v.  Thompson,  73  Kan.  76,  84  Pac. 
552,  (to  recover  commissions  for  finding 
proposed  purchaser). 

6.  Agency. — When  admitted  by  the 
pleadings. — A  direct  averment  in  the 
complaint,  not  denied  by  the  answer,  in 
effect  that  at  the  time  of  the  execution 
of  a  chattel  mortgage  the  party  making 
the  certificate  was  duly  authorized  to 
act  in  regard  thereto  as  an  agent  of  the 
mortgagee,  is  sufficient  to  show  agency: 
San  Francisco  Breweries  v.  Schurtz,  104 
Cal.  420,  428,  38  Pac.  92. 

7.  Departure  by  agent  from  his  author- 
ity.— A  departure  by  a  real  estate  broker 
from  the  terms  of  his  authority  in  ef- 
fecting a  sale,  becomes,  on  ratification 
by   the  principal,   a  part  of  the  original 


Ch.  XCVI.] 


ANNOTATIONS,  ETC. 


1335 


contract,  and  the  compensation  fixed 
therein  governs,  and  the  broker  is  en- 
titled to  recover  in  accordance  there- 
with: Levy  v.  Wolf,  2  Cal.  App.  491, 
494,  84  Pac.  313. 

For  a  case  in  which  the  issue  of 
authority  of  an  agent  was  raised  by  the 
pleadings,  see  Wales  v.  Mower,  44  Colo. 
146,   96  Pac.  971. 

8.  Ratification  by  municipal  corpora- 
tion of  unauthorized  agent's  acts. — A 
municipal  corporation's  act  done  through 
an  unauthorized  agent  must  be  ratified 
in  the  manner  in  which  original  author- 
ity could  have  been  conferred:  See  Mc- 
Cracken  v.  San  Francisco,  16  Cal.  591; 
Grogan  v.  San  Francisco,  18  Cal.  590; 
People  v.  Swift,  31  Cal.  26,  28. 

9.  Pleading  the  ratification  is,  however, 
unnecessary.     It    is    sufficient    to    allege 


the  execution  by  the  defendant  of  the 
instrument  upon  which  suit  is  brought, 
and  which  he  has  ratified:  Porter  v. 
Lassen  Co.  L.  &  C.  Co.,  127  Cal.  261, 
271,    59   Pac.   563. 

10.  Agent  suing  alone. — An  agent  con- 
tracting in  his  own  name  for  the  benefit 
of  his  principal,  the  agency  being 
known,  may  sue  in  his  own  name  with- 
out joining  his  principal  as  a  party 
plaintiff:  Salmon  v.  Hoffman,  2  Cal.  138, 
56  Am.  Dec.  322;  Ord  v.  McKee,  5  Cal. 
515;  Winters  v.  Rush,  34  Cal.  136.  See 
Weaver  v.  Trustee  &  W.  E.  Canal,  28 
Ind.  112;  Rice  v.  Savery,  22  Iowa  470; 
Wright  v.  Tinsley,  30  Mo.  389;  Chelten- 
ham Fire  Brick  Co.  v.  Cook,  44  Mo.  29; 
Considerant  v.  Brisbane,  22  N.  Y.  389; 
Noe  v.  Christy,  51  N.  Y.  270;  Hubbell  v. 
Medbury,  53  N.  Y.  98. 


CHAPTER    XCVI. 

Insurance. 

Page 

$  341.  Complaints  [or  petitions]    1336 

Form  No.  707.  Upon  fire  insurance  policy.     (Common  form.) . .  1336 

Form  No.  708.  By  mortgagee  as  assignee  of  the  policy 1337 

Form  No.  709.  Upon  fire  insurance  policy. — Total  loss 1337 

Form  No.  710.  Upon  fire  insurance  policy. — With  averments  as 

to  waiver  of  written  statement 1339 

Form  No.  711.  On  agreement  to  insure  and  give  policy 1342 

Form  No.  712.  By  executor,  on  life  policy 1343 

Form  No.  713.  By  assignee,  in  trust  for  wife  of  insured 1344 

Form  No.  714.  By  wife,  partner,  or  creditor  of  insured 1344 

Form  No.  715.  Interpleader  to  determine  beneficial  interest  in 

life  insurance  policy  1345 

Form  No.  716.  On  a  valued  marine  policy 1347 

Form  No.  717.  On  open  marine  policy 1348 

Form  No.  718.  On  vessel  lost  by  perils  of  the  sea 1349 

Form  No.  719.  For     partial     loss     and     contribution. — Marine 

policy    1350 

Form  No.  720.  Allegation  of  renewal   1350 

Form  No.  721.  Averment  where  plaintiff  purchased  the  prop- 
erty after  insurance 1351 

Form  No.  722.  Averment  of  waiver  of  condition 1351 

§  342.  Answers 1351 

Form  No.  723.  Denial  of  policy  1351 

Form  No.  724.  Denial  of  plaintiff's  interest 1351 

Form  No.  725.  Defense  based  upon  denial  of  loss 1351 

Form  No.  726.  Defense  of  misrepresentation  and  concealment  1352 


1336  INSURANCE.  [Tit.  XII. 

Form  No.  727.  Defense  setting  forth  "fallen  building"  clause 

in  action  upon  fire  insurance  policy 1352 

Form  No.  728.  Defense  of  overinsurance   without  consent  of 

insurer 1352 

Form  No.  729.  Defenses — (1)  denial  o.f  furnishing  proofs  of 
death,  (2)  denial  of  indebtedness,  (3)  denial 
of  waiver  of  conditions. — In  general  defense 
of   forfeiture   of   policy   for   non-payment  of 

premium    1353 

Form  No.  730.  Transfer  without  insurer's  consent 1354 

Form  No.  731.  Defense  that  a  fraudulent  account  of  loss  was 

given 1354 

Form  No.  732.  Defense  that  risk  was  extra-hazardous 1354 

Form  No.  733.  Denial  of  loss  from  peril  or  risk  insured  against     1355 

Form  No.  734.  Defense  that  vessel  was  unseaworthy 1355 

S  343.  Annotations    1356 

§341.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  707 — Upon    fire    insurance    policy.     (Common    form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  the  defendant  is  a  corporation  duly  created  by  and  under 
the  laws  of  the  state  of  ,  organized  pursuant  to  an  act  of  the 
legislature  of  said  state,  entitled  [give  title  of  act],  passed  [give 
date  of  passage],  and  the  acts  amendatory  thereof. 

2.  That  on  the  day  of  ,  19  ,  the  plaintiff  being  the 
owner  of  a  dwelling-house  and  furniture  therein  in  Street, 
in  the  city  of  ,  in  consideration  of  the  premium  of  $  ,  the 
defendant,  by  its  policy  of  insurance  in  writing,  a  copy  of  which  is 
hereto  annexed,  marked  "Exhibit  A,"  and  made  a  part  hereof, 
insured  the  plaintiff  against  loss  or  damage  by  fire  to  the  amount  of 
$  on  said  property,  from  the  day  of  ,  19  ,  at  12 
o'clock  noon,  until  the          day  of            ,  19     ,  at  12  o'clock  noon. 

3.  That  the  plaintiff  has  duly  performed  all  the  conditions  on  his 
part  to  be  performed;  that  on  the  day  of  ,  19  ,  said 
dwelling-house  and  furniture  were  totally  destroyed  [or  greatly  dam- 
aged, stating  the  extent  thereof]  by  fire,  which  did  not  happen  by 
[any  of  the  causes  excepted  in  the  policy]. 

4.  That  the  plaintiff's  loss  thereby  was  $ 

5.  That  the  plaintiff  immediately  thereafter,  on  the  day  of 

,  19     ,  notified  the  defendant  of  said  loss,  and  on  the  day 


Ch.  XCVI.J  COMPLAINTS   [OR  PETITIONS].— FORMS.  1337 

of  ,  19     ,  and  more  than         days  prior  to  this  action,  furnished 

the  defendant  with  due  proof  of  said  loss. 

6.  That  no  part  of  said  loss  has  been  paid,  and  the  whole  of  said 
sum  is  now  due  thereon  from  the  defendant  to  the  plaintiff. 

[Concluding  part.] 

FORM   No.  708 — By  mortgagee  as  assignee  of  the  policy. 

[Title  of  court  and  cause.] 

[As  in  preceding  form  to  fifth  paragraph,  substituting  the  original 
insured's  name  for  the  word  "plaintiff."] 

5.  That  on  the  day  of  ,  19  ,  the  said  insured  executed  and 
delivered  to  the  plaintiff  his  mortgage  on  said  premises,  to  secure 
the  sum  of  $  ,  and  assigned  said  policy  to  the  plaintiff  as  further 
security,  and  thereupon  the  defendant,  at  the  request  of  the  plaintiff 
and  of  the  insured,  endorsed  on  said  policy,  "Loss,  if  any,  payable  to 
[plaintiff]  as  his  interest  may  appear." 

6.  That  said  mortgage  and  the  debt  secured  thereby  is  wholly 
unpaid  and  unsatisfied. 

[Continue  as  in  preceding  form,  averring  performance  of  condi- 
tions, giving  of  notice,  and  proofs  of  loss  by  the  original  insured.] 
[Concluding  part.] 

FORM   No.  709 — Upon  fire  insurance  policy. — Total  loss. 

(In  Clayburg  v.  Agricultural  Ins.  Co.,  155  Cal.  708;  102  Pac.  812.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  alleges : 

1.  That  defendant  now  is,  and  at  and  during  all  the  times  herein- 
after stated  was,  a  body  corporate,  duly  created,  formed,  and  organ- 
ized under  the  laws  of  the  state  of  New  York. 

2.  That  on,  to  wit,  the  8th  day  of  March,  1905,  at  the  city  and 
county  of  San  Francisco,  state  of  California,  defendant,  in  considera- 
tion of  the  payment  to  it  by  plaintiff  of  the  sum  of  $60.60,  did  then 
and  there  execute  and  deliver  to  plaintiff,  its  certain  policy  of  insur- 
ance in  writing,  a  copy  whereof  is  annexed  hereto,  marked  "Exhibit 
A,"  1  and  made  a  part  of  this  complaint,  and  in  and  by  which  said 

l  Exhibit  A  to  the  foregoing  form  No.  709  (action  upon  an  insurance  policy)  is 
a  copy  of  said  policy.  The  policy  contains  the  following  clause,  which  was  the 
subject  of  much  litigation  over  the  losses  from  the  great  San  Francisco  fire,  April 
18  to  April  21,  190G,  and  upon  which  the  defenses  to  the  actions  instituted  upon 
policies  were  generally  based.  The  clause  referred  to  is  as  follows:  "If  a  building 
or  any  part  thereof  fall,  except  as  the  result  of  fire,  all  insurance  by  this  policy 
on  such  building  or  its  contents  shall  immediately  cease." 


1338  INSURANCE.  [Tit.  Xll. 

defendant  did  insure  plaintiff  for  the  term  of  one  year  from  the  23d 
day  of  April,  1905,  at  noon,  to  the  23d  day  of  April,  1906,  at  noon, 
against  all  loss  or  damage  by  fire  except  as  in  said  policy  provided, 
to  an  amount  not  exceeding  $6,000,  on  the  property  described  in  the 
slip  attached  to  said  policy,  which  slip  was  then  and  there  attached 
to  said  policy,  and  is  in  words  and  figures  as  follows,  to  wit :  [Here 
follows  copy  of  said  slip  set  out  in  haec  verba,  describing  the  property 
insured,  its  location,  and  granting  permission  to  make  alterations, 
repairs,  to  use  electric  power,  and  to  effect  other  insurance.] 

3.  That  on  said  8th  day  of  March,  1906,  and  at  the  time  of  the  exe- 
cution and  delivery  of  said  policy  of  insurance,  and  continuously 
thereafter,  up  to  and  including  the  time  of  the  fire  hereinafter  men- 
tioned, plaintiff  was  the  owner  in  fee-simple  of  the  ground  on  which 
the  building  described  in  said  slip  was  erected,  and  plaintiff  at  and 
during  all  said  times  was  the  sole  owner  of  said  brick  building  and 
of  all  the  property  described  in  and  insured  by  said  policy  of 
insurance. 

4.  That  at  and  during  all  said  times,  said  building  was  occupied  as 
an  art  store,  and  was  known  and  designated  as  No.  113  Geary  Street, 
in  said  city  and  county. 

5.  That  on  the  19th  day  of  April,  1906,  all  the  property  described 
in  and  insured  by  said  policy  of  insurance  was  totally  destroyed  by 
fire ;  that  the  destruction  of  said  property  was  by  fire  direct,  and  was 
not  caused  directly  or  indirectly  by  invasion,  insurrection,  riot,  civil 
war,  or  commotion,  or  military  or  usurped  power,  or  by  order  of  any 
civil  authority,  or  by  theft,  or  by  neglect  of  the  insured  to  use  all 
reasonable  means  to  save  and  preserve  the  property  at  and  after  the 
fire,  or  by  explosion  of  any  kind,  or  by  lightning,  or  by  any  cause  or 
causes  which  by  the  terms  of  said  policy  of  insurance  are  excepted 
therefrom. 

6.  That  the  building  described  in  said  policy  and  every  part 
thereof  fell  as  the  result  of  said  fire,  and  that  the  fall  of  said  building 
and  every  part  thereof  was  caused  solely  by  said  fire. 

7.  That  the  loss  of  plaintiff  by  said  last-mentioned  fire  to  said 
insured  property  was  $55,159;  that  at  the  time  of  said  fire  the  aggre- 
gate amount  of  insurance  upon  the  property  insured  by  said  policy 
was  $30,000  and  no  more. 

8.  That  on  the  4th  day  of  June,  1906,  at  the  city  and  county  of  San 
Francisco,  state  of  California,  plaintiff  delivered  to  defendant  a  veri- 


Ch.  XCVI.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1339 

fied  proof  of  loss  in  writing  of  his  said  loss  and  interest  in  said  prop- 
erty so  destroyed  as  aforesaid,  and  did  in  all  matters  and  things 
fully  and  completely  perform  all  the  conditions  of  said  policy  on  the 
part  of  the  insured  to  be  kept  and  performed. 

9.  That  more  than  sixty  days  have  elapsed  since  delivery  to  defend- 
ant of  said  verified  proof  of  loss ;  that  said  defendant  has  not  notified 
plaintiff  of  any  objections  to  said  proof  of  loss,  and  no  disagreement 
has  arisen  between  plaintiff  and  defendant  as  to  the  amount  of 
plaintiff's  loss;  but  defendant  has  failed  and  refused  to  adjust  plaint- 
iff's loss  unless  plaintiff  would  agree  in  advance  to  accept  from 
defendant,  in  full  of  plaintiff's  said  claim,  a  sum  materially  less  than 
the  proportion  of  said  loss  for  which  defendant  is  liable  under  said 
policy ;  that  the  proportion  of  the  loss  of  said  insured  property  pay- 
able by  defendant  under  its  said  policy  of  insurance  is  the  sum  of 
$6,000 ;  that  defendant  has  refused  to  pay  its  proportion  of  said  loss 
to  plaintiff,  although  demand  therefor  has  been  made ;  that  the 
amount  owing  by  defendant  to  plaintiff  for  the  loss  as  aforesaid  sus- 
tained by  plaintiff  to  the  property  insured  by  defendant  under  its 
said  policy  of  insurance  is  the  sum  of  $6,000,  all  of  which  is  due  and 
unpaid. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  $6,000,  with  interest  at  the  rate  of  seven  per  cent  per  annum 
from  the  4th  day  of  August,  1906,  and  for  costs  of  suit. 

Naphtaly  &  Freidenrich, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  710 — Upon  fire   insurance   policy. — With  averments  as  to  waiver 
of  written  statement. 

(In  McCollough  v.  Home  Ins.  Co.  of  N.  Y.,  155  Cal.  659 ;  102  Pac.  814.) 

[Title  of  court  and  cause.] 

Comes  now  C.  M.  McCollough,  the  plaintiff  herein,  and  by  leave  of 
court  first  had  and  obtained,  files  this,  his  amended  complaint,  and 
for  cause  of  action  against  the  defendant  herein  alleges: 

1.  That  the  defendant  is  a  corporation,  organized  and  existing 
under  the  laws  of  the  state  of  New  York,  and  licensed  and  empow- 
ered to  transact  business  in  its  special  line  in  the  state  of  California. 

2.  That  heretofore,  to  wit,  on  the  31st  day  of  July,  1905,  the  plaint- 
iff was  the  owner  of,  and  used  and  occupied  as  a  dwelling-house  only, 
that  certain  building  located  on  the  southwest  corner  of  Villa  and 


1340  INSURANCE.  [Tit.  XII. 

Diller  streets,  in  the  town  of  Watts,  county  of  Los  Angeles,  state  of 
California,  together  with  certain  household  furniture,  wearing  ap- 
parel, family  stores,  books,  pictures,  silver  and  plated  ware,  musical 
instruments,  and  other  personal  effects,  therein  contained  and  located, 
and  was  the  owner  thereof  during  all  the  time  since  said  31st  day  of 
July,  1905,  and  up  to  and  at  the  time  of  the  destruction  of  all  said 
property  by  fire,  as  hereinafter  mentioned,  and  during  all  of  said 
time  continuously  used  and  occupied  said  building  only  as  a  dwelling- 
house. 

That  before  said  contract  and  policy  of  insurance  was  entered  into 
between  this  plaintiff  and  defendant,  and  before  said  policy  was 
issued  by  the  defendant,  this  plaintiff  fairly  stated  and  disclosed  to 
the  defendant  and  to  its  agent  the  nature  and  character  of  the  interest 
of  plaintiff  to  and  in  the  lot  and  parcel  of  land  upon  which  said 
building  was  located,  and  then  and  there  stated  and  disclosed  to  the 
defendant  and  its  agent  that  plaintiff  had  purchased  said  real  estate 
under  a  contract  of  sale  from  the  Golden  State  Realty  Company,  a 
corporation,  with  its  principal  place  of  business  in  the  city  and  county 
of  Los  Angeles,  and  was  then  paying  the  purchase  price  therefor  in 
instalments,  and  that  there  was  then  due  on  said  purchase  price 
the  sum  of  about  $200,  and  that  he,  the  plaintiff,  did  not  at  that  time 
have  a  deed  to  said  property ;  that  thereupon  said  defendant  and  its 
agents  issued  and  delivered  to  this  plaintiff  its  said  policy  of  insur- 
ance covering  the  said  property  therein  described,  the  same  being 
the  property  herein  set  forth;  that  before  said  fire,  and  before  said 
loss  occurred,  this  plaintiff  fully  paid  the  balance  due  on  the  said 
purchase  price  of  said  real  estate  to  said  Golden  State  Realty  Com- 
pany, and  obtained  a  deed  to  said  property ;  that  plaintiff  has  at  no 
time  since  said  policy  was  issued,  as  aforesaid,  parted  with  any  of  his 
right,  title,  or  interest  to  or  in  said  property,  but  has  at  all  times  been 
the  sole  and  exclusive  owner  thereof,  except  as  aforesaid. 

3.  That  on  the  31st  day  of  July,  1905,  at  the  city  of  Los  Angeles, 
state  of  California,  in  consideration  of  the  payment  by  the  plaintiff 
to  the  defendant  of  the  premium  of  $46,  which  was  received  and 
accepted  by  defendant  as  aforesaid,  made  and  delivered  to  plaintiff 
its  policy  of  insurance  in  writing,  covering  all  of  the  foregoing  and 
above-mentioned  and  described  property,  a  copy  of  which  said  policy 
is  annexed  to  plaintiff's  first  amended  complaint  in  this  action,  as 
"Exhibit  A,"  and  said  exhibit  A  is  made  a  part  hereof  by  stipu- 
lation of  the  parties  hereto. 


Ch.  XCVI.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1341 

4.  That  on  or  about  the  1st  day  of  June,  1906,  said  dwelling-house 
and  said  furniture,  stores,  wearing  apparel,  family  stores,  books,  pic- 
tures, silver  and  plated  ware,  musical  instruments,  and  other  personal 
effects  therein  contained,  all  of  which  were  included  in,  and  com- 
prehended and  covered  by,  said  policy,  were  totally  destroyed  by  fire. 

That  the  plaintiff's  loss  on  account  of  the  destruction  by  fire  of 
said  dwelling-house,  the  said  furniture,  stores,  wearing  apparel, 
books,  wares,  pictures,  musical  instruments,  and  other  personal 
effects,  included  in  and  covered  by  said  policy,  was  the  sum  of 
$5,564.50,  the  same  being  the  actual  and  reasonable  cash  value  of  said 
property  at  the  time  of  its  destruction  by  fire,  as  aforesaid. 

6.  That  on  or  about  the  4th  day  of  June,  1906,  this  plaintiff  gave 
to  the  defendant  full  and  complete  oral  items  and  proof  of  his  said 
loss  on  said  property,  and  at  said  time  rendered  an  oral  statement 
to  said  company,  stating  the  knowledge  and  belief  of  plaintiff,  the 
said  insured,  as  to  the  time  and  origin  of  said  fire,  and  the  interest 
of  said  insured  and  all  others  in  said  property,  the  cash  value  of 
each  item  thereof,  and  the  amount  of  loss  thereon,  stating  that  there 
was  no  other  insurance  on  said  property,  and  giving  all  changes  in 
the  title,  use,  occupation,  location,  possession,  and  exposure  of  said 
property  since  the  issuance  of  said  policy,  and  by  whom  and  for  what 
purposes  the  said  building  and  parts  thereof  were  occupied  at  the 
time  of  said  fire ;  that  defendant  did  not  require  said  notice  and  said 
statement  to  be  in  writing,  but  then  and  there  expressly  waived  said 
requirement,  and  then  and  there  expressly  waived  written  notice  of 
loss,  and  then  and  there  expressly  waived  a  written,  signed,  and 
sworn  statement,  of  the  character  aforesaid,  in  the  manner  and  as 
follows,  to  wit :  That  defendant  represented  to,  informed,  and  told 
plaintiff  that  defendant  would  not  ask,  require,  or  expect  plaintiff 
to  furnish  said  notice  and  said  statement  in  writing,  signed,  and 
under  oath,  but  that  defendant  was  satisfied  with  the  notice  and 
statement  then  given  and  rendered  by  plaintiff  as  aforesaid;  and 
defendant  further  represented  and  said  to  plaintiff  that  a  written, 
signed,  and  sworn  statement  made  no  difference  to  defendant,  as  it 
intended  to  settle  plaintiff's  said  loss  with  him  in  any  event;  that 
more  than  sixty  days  elapsed  after  giving  said  notice,  and  after 
rendering  said  statement  aforesaid,  and  after  ascertaining,  estimat- 
ing, and  giving  satisfactory  proof  as  aforesaid  of  said  loss,  before  the 
commencement  of  this  action ;  that  plaintiff  has  otherwise  performed 
all  the  conditions  of  said  policy  to  be  performed  by  him. 


1342  INSURANCE.  [Tit.  XII. 

7.  That  on  the  28th  day  of  August,  1906,  plaintiff  furnished  to  said 
defendant,  at  its  special  instance  and  request,  additional  and  supple- 
mental proof  of  plaintiff's  said  loss  and  interest  of  and  in  said  prop- 
erty, in  writing. 

8.  That  after  said  fire,  and  before  the  commencement  of  this  action, 
the  plaintiff  at  divers  times  made  demand  on  said  defendant  for  pay- 
ment of  his  said  loss,  according  to  the  terms  of  said  policy,  in  the 
sum  of  $3,000,  but  the  defendant  refused,  and  still  refuses,  to  pay 
the  same. 

9.  That  the  defendant  has  not  paid  said  loss,  or  any  part  thereof, 
and  the  same  is  now  due,  owing,  and  unpaid. 

Wherefore,  plaintiff  prays  judgment  against  the  defendant  for  the 
sum  of  $3,000,  as  provided  for  in  said  policy,  and  that  plaintiff  be 
given  judgment  for  his  costs,  and  for  all  other  proper  relief  in  the 
premises  to  which  he  may  be  entitled. 

C.  W.  Pendleton, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  711 — On  agreement  to  insure  and  give  policy. 
[Title  of  court  and  cause.] 
[After  introductory  part :] 

1.  [Allege  incorporation  of  defendants.] 

2.  That  on  the  day  of  ,  19  ,  the  plaintiff  applied  to 
L.  M.,  who  was  then  and  there  the  duly  authorized  agent  of  the  de- 
fendants, for  insurance  against  loss  or  damage  by  fire  upon  [describe 
what],  the  property  of  said  plaintiff,  and  the  defendants,  by  their 
said  agent,  in  consideration  of  a  premium  of  $  ,  to  be  paid  them 
by  the  plaintiff,  agreed  to  insure  the  plaintiff  on  the  said  [state  what] 
from  12  o'clock  noon  of  said  day  for  the  space  of  months,  and  to 
execute  and  deliver  to  the  plaintiff  within  a  reasonable  and  conven- 
ient time  their  policy  of  insurance  therefor  in  the  usual  form  of 
policy  issued  by  them. 

3.  That  the  usual  form  of  policy  issued  by  the  defendants  agrees, 
among  other  things,  to  [set  out  legal  effect  of  contemplated  policy]. 

4.  That  afterward,  to  wit,  on  the  day  of  ,  19  ,  the  said 
property  was  damaged  [totally  destroyed]  by  fire,  whereby  the 
plaintiff  sustained  a  loss  to  the  amount  of  $ 

5.  That  the  defendants  neglected  and  refused,  and  still  refuse,  to 
execute  and  deliver  their  said  policy  of  insurance  in  writing  to  the 
plaintiff  in  pursuance  of  said  agreement. 


Ch.  XCVI.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1343 

6.  That  the  plaintiff  has  duly  performed  all  the  conditions  of  said 
agreement  and  insurance  on  his  part  to  be  performed,  and  on  the 
day  of  ,  19     ,  notified  the  defendants  of  said  loss,  and  on  the 
day  of  ,  19     ,  duly  furnished  the  defendants  with  proofs  of  loss. 

7.  That  although  more  than  days  have  elapsed  since  said 
proofs  were  furnished,  no  part  of  said  loss  has  been  paid,  and  the 
whole  thereof  remains  due  and  payable  to  the  plaintiff. 

[Concluding  part.] 

FORM   No.  712 — Action  by  executor  on  life  policy. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  [Allegation  of  incorporation.] 

2.  That  on  the  day  of  ,  19  ,  at  ,  in  considera- 
tion of  the  payment  of  the  premium  of  $  annually  [or  other- 
wise] during  life,  the  defendants,  by  their  agents  duly  authorized 
thereto,  executed  their  policy  of  insurance  in  writing  to  one  L.  M. 
on  his  life,  in  the  sum  of  $  ,  a  copy  of  which  policy  is  hereto 
annexed,  marked  "Exhibit  A,"  and  made  a  part  of  this  complaint 
[or  petition]. 

3.  That  on  the  day  of  ,  19  ,  at  ,  said  L.  M.  died 
[but  not  by  his  own  hands,  or  at  the  hands  of  justice,  etc., — if  such 
causes  be  excepted],   having  previously,   and  on  the  day  of 

,  19     ,  made  his  last  will  and  testament  in  due  form,  thereby 
appointing  the  plaintiff  sole  executor  thereof. 

4.  That  said  last  will  and  testament  was  duly  proved  and  admitted 
to  probate  in  the  probate  court  of  the  county  of  ,  and  letters 
testamentary  thereupon,  by  an  order  of  said  court  therein  duly 
given  and  made  in  said  proceeding,  were  issued  to  this  plaintiff  on 
the  day  of  ,  19  ,  and  the  plaintiff  thereupon  duly  quali- 
fied as  such  executor,  and  entered  upon  the  discharge  of  the  duties 
of  his  said  office. 

5.  That  on  the  day  of  ,  19  ,  the  plaintiff  furnished 
the  defendant  with  proofs  of  the  death  of  the  said  L.  M.,  and  that 
the  said  L.  M.  and  the  plaintiff  each  duly  performed  all  the  condi- 
tions of  said  policy  of  insurance  on  his  part. 

6.  That  no  part  of  the  said  sum  has  been  paid,  and  tfrat  the  whole 
thereof  is  now  due  thereon  from  the  defendants  to  the  plaintiff,  as 
such  executor. 

[Concluding  part.] 


1344  INSURANCE.  [Tit.  XII. 

FORM   No.  713 — Action  by  assignee  in  trust  for  wife  of  insured. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  [Allegation  of  incorporation.] 

2.  That  on  the  day  of  ,  19  ,  at  ,  in  consideration 
of  the  payment  of  the  premium  of  $  annually  [or  otherwise] 
during  life,  the  defendants,  by  their  agents  duly  authorized  thereto, 
executed  their  policy  of  insurance  in  writing  to  one  L.  M.  on  his- 
life,  in  the  sum  of  $  ,  a  copy  of  which  policy  is  hereto  annexed, 
marked  "Exhibit  A,"  and  made  a  part  of  this  complaint  [or  peti- 
tion]. 

3.  That  on  the  day  of  ,  19  ,  the  said  L.  M.  [with  the 
written  consent  of  the  defendants]  duly  assigned  said  policy  of 
insurance  to  this  plaintiff,  in  trust  for  E.  M.,  his  wife. 

4.  That  up  to  the  time  of  the  death  of  said  L.  M.  all  premiums 
accrued  upon  said  policy  were  fully  paid. 

5.  That  on  the  day  of  ,  19  ,  at  ,  said  L.  M. 
departed  this  life  [but  not  by  his  own  hands,  or  at  the  hands  of  jus- 
tice, etc., — if  such  be  excepted  causes  of  death]. 

6.  That  said  L.  M.  and  the  plaintiff  each  performed  all  the  condi- 
tions of  said  insurance  on  his  part,  and  the  plaintiff,  more  than 

days   before   the  commencement   of  this   action,   to   wit,   on 
the  day  of  ,  19     ,  gave  to  the  defendants  notice  and 

proofs  of  the  death  of  said  L.  M.  as  aforesaid,  and  demanded  pay- 
ment of  the  said  sum  of  $ 

7.  That  said  sum  has  not  been  paid,  nor  any  part  thereof,  and  the 
same  is  now  due  thereon  from  the  defendants  to  the  plaintiff. 

[Concluding  part.] 

FORM  No.  714 — Action  by  wife,  partner,  or  creditor  of  insured. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  [Allegation  of  incorporation.] 

2.  That  on  the  day  of  ,  19  ,  at  ,  in  consideration 
of  the  payment  by  the  plaintiff  to  the  defendants  of  the  [annual] 
premium  of  $  ,  the  defendants  executed  to  the  plaintiff  their 
policy  of  insurance  upon  the  life  of  [her  husband]  L.  M.,  of  which 
a  copy,  marked  "Exhibit  A,"  is  hereto  annexed  as  a  part  of  this 
complaint  [or  petition],  and  thereby  insured  the  life  of  said  L.  M. 
in  the  sum  of  $            ,  payable  to  the  plaintiff. 


€h.  XCVI.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1345 

3.  That  the  plaintiff  had  a  valuable  interest  in  the  life  of  the  said 
L.  M.  at  the  time  of  his  death,  and  at  the  time  of  effecting  the  said 
insurance.     [State  nature  of  the  interest.] 

4.  That  on  the  day  of  ,  19  ,  at  ,  the  said  L.  M. 
died  [but  not  by  his  own  hands,  or  at  the  hands  of  justice,  etc.],  and 
on  the  day  of  ,  19  ,  the  plaintiff  furnished  the  defend- 
ants with  proofs  of  the  death  of  said  L.  M.,  and  otherwise  performed 
all  the  conditions  of  the  said  policy  on  [her]  part. 

5.  That  no  part  of  the  same  has  been  paid,  and  the  said  sum  is  now 
due  thereon  from  the  defendants  to  this  plaintiff. 

[Concluding  part.] 

FORM   No.  715 — Interpleader  to   determine   beneficial   interest   in   life   insur- 
ance policy. 

(In  Grand  Lodge  A.  0.  U.  W.  v.  Miller,  8  Cal.  App.  25;  96  Pac.  22.) 

[Title  of  court.] 

The  Grand  Lodge  Ancient  Order 
of  United   Workmen  of  Wash- 
ington, a  corporation,  plaintiff, 
v. 

Ida  Miller,  and  Mark  A.  Miller, 
her  husband,  and  Ada  Baptist, 
and  Joseph  Baptist,  her  hus- 
band, and  Ada  Baptist,  execu- 
trix of  the  last  will  of  Matilda 
F.  Peacock,  deceased,  defend- 
ants. 
Comes  now  the  plaintiff,  and  for  cause  of  action  complains  and 

alleges : 

1.  That  the  plaintiff,  Grand  Lodge  Ancient  Order  of  United  Work- 
men of  Washington,  is  a  fraternal  beneficiary  order,  organized  and 
incorporated  under  the  laws  of  the  state  of  Washington,  and  author- 
wed  to  do  business  in  the  said  state. 

2.  That  the  defendants  John  Doe  Miller,  whose  true  Christian 
name  is  to  the  plaintiff  unknown,  and  Ida  Miller  are  husband  and 
wife ;  that  the  defendants  Richard  Roe  Baptist,  whose  true  Christian 
name  is  to  the  plaintiff  unknown,  and  Ada  Baptist  are  husband  and 
wife;  and  that  said  marital  relations  existed  at  all  the  times  herein- 
after mentioned ;  that  Ada  Baptist  is  the  administratrix  of  the  estate 
of  Matilda  Peacock,  deceased. 


1346  INSURANCE.  [Tit  XII. 

3.  That  on  the  23d  day  of  July,  1892,  one  William  Peacock,  being 
then  a  resident  of  the  state  of  Washington,  became  a  member  of  one 
of  the  subordinate  lodges  of  plaintiff  and  the  holder  of  a  beneficiary 
certificate,  by  the  terms  of  which  the  plaintiff  agreed  to  pay  to  the 
beneficiary  of  said  William  Peacock,  upon  proof  of  the  latter 's  death, 
the  sum  of  $2,000. 

4.  That  the  said  William  Peacock  designated  as  his  beneficiary 
under  said  beneficiary  certificate  Matilda  Peacock,  bearing  the  rela- 
tion to  him  of  wife. 

5.  That  the  said  William  Peacock  paid  all  dues  and  assessments 
levied  against  him  by  plaintiff  until  the  18th  day  of  April,  1906, 
when  he  and  his  wife,  Matilda  Peacock,  were  both  instantly  killed  in 
the  great  earthquake  disaster  of  that  date,  at  Santa  Rosa,  Sonoma 
Gounty,  California ;  and  that  there  immediately  became  due  from  this 
plaintiff  to  the  beneficiaries  of  the  deceased  William  Peacock,  upon 
their  filing  proof  of  death,  the  sum  of  $2,000. 

6.  That  the  said  William  Peacock  left  surviving  him  his  daughter, 
Ada  Baptist,  who  was  also  the  daughter  of  Matilda  Peacock,  de- 
ceased; and  the  defendant  Ida  Miller,  who  was  a  daughter  of  said 
William  Peacock  by  a  former  wife;  that  said  William  Peacock  left 
no  other  child  or  children,  or  issue  of  any  or  other  child  or  children. 

7.  That  section  15  of  article  V  of  the  constitution  of  the  plaintiff, 
reads  as  follows:  "Sec.  15. — Order  of  payment  to  beneficiaries.  If 
one  or  more  of  the  beneficiaries  shall  die  during  the  lifetime  of  a 
member,  the  surviving  beneficiary  or  beneficiaries  shall  be  entitled  to 
the  benefit  equally,  unless  otherwise  provided  in  the  beneficiary  cer- 
tificate, and  if  all  the  beneficiaries  shall  die  during  the  lifetime  of  the 
member,  and  he  shall  have  made  no  other  direction,  the  benefit  shall 
be  to  his  widow,  if  living  at  the  time  of  his  death;  if  he  leave  no 
widow  surviving  him,  then  said  benefit  shall  be  paid  share  and  share 
alike  to  his  children,  his  grandchildren  living  at  the  time  of  his  death 
to  take  the  share  to  which  the  deceased  parent  would  be  entitled, 
if  living;  if  there  be  no  children  or  grandchildren  of  the  deceased 
member  living  at  the  time  of  his  death,  then  said  benefit  shall  be 
paid  to  his  mother,  if  living;  and  if  she  be  dead  at  the  time  of  his 
death,  then  to  his  father,  if  living ;  and  if  he  be  dead  at  the  time  of 
his  death,  then  to  his  sister  or  sisters,  share  and  share  alike;  and  if  he 
has  no  sisters  living  at  the  time  of  his  death,  then  to  his  brother  or 
brothers,  share  and  share  alike;  and  should  there  be  no  one  living 


Ch.  XCVI.J  COMPLAINTS   [OR  PETITIONS].— FORMS.  1347 

at  the  death  of  the  member  entitled  to  said  benefit  under  the  pro- 
visions hereof,  then  the  same  shall  revert  to  the  beneficiary  fund  of 
the  grand  lodge." 

8.  That  upon  proof  of  the  death  being  filed  with  the  plaintiff,  it 
caused  to  be  issued  and  sent  to  be  delivered  to  Ada  Baptist  and  Ida 
Miller,  each  as  beneficiary  of  William  Peacock,  deceased,  a  draft  in 
the  sum  of  $1,000,  and  one  payable  to  Ada  Baptist  and  one  payable 
to  Ida  Miller;  that  Ada  Baptist  accepted  the  draft  payable  to  her, 
and  cashed  the  same;  that  the  draft  payable  to  Ida  Miller  was, 
through  a  mistake  of  plaintiff's  agent,  delivered  to  Ada  Baptist,  who 
claimed  the  same  as  the  property  of  the  estate  of  Matilda  Peacock, 
deceased. 

9.  That  the  defendants  Ida  Miller  and  Ada  Baptist  claim,  and  each 
of  them  claims,  the  remaining  $1,000,  as  does  also  Ada  Baptist  as 
administratrix  of  the  estate  of  Matilda  Peacock,  deceased;  and  the 
plaintiff  can  not  safely  pay  the  same  to  either  of  said  claimants  with- 
out an  adjudication  of  the  rights  of  defendants,  and  plaintiff  has 
been  obliged  to  employ  attorneys  for  that  purpose. 

10.  That  the  plaintiff  herein  pays  into  the  clerk  of  said  court  the 
said  sum  of  $1,000. 

11.  Wherefore,  plaintiff  prays :  That  the  rights  of  the  defendants 
in  and  to  the  above-mentioned  $1,000  be  determined,  and  that  the 
plaintiff  be  relieved  from  any  and  all  liability  on  account  of  the 
beneficiary  certificate  issued  to  the  said  William  Peacock,  deceased ; 
that  the  plaintiff  be  absolved  and  adjudged  free  from  all  costs  in 
this  action ;  and  for  such  other  and  further  relief  as  to  the  court  may 
seem  meet  and  proper,  and  for  an  allowance  of  attorneys'  fees  out 
of  said  $1,000.  Louis  F.  Hart,  and 

A.  A.  Sanderson, 
[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  716— Action  on  a  valued  marine  policy. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  the  defendant  was  at  all  the  times  hereinafter  mentioned, 
and  now  is,  a  corporation  created,  organized,  and  existing  under  the 
laws  of  the  state  of 

2.  That  on  the  day  of  ,  19  ,  in  consideration  of  the 
premium  of  $             ,  paid   to  the   defendant   by   the   plaintiff,   the 


1348 


INSURANCE.  [Tit.  XII. 


defendant  made  to  the  plaintiff  a  policy  of  insurance  in  writing,  upon 
the  ship  described  in  the  said  policy,  which  policy  is  in  the  words 
and  figures  following,  to  wit:  [Insert  copy,  or  annex,  and  refer  to 
the  same  as  an  exhibit.] 

3.  That  said  ship  was  then  lying  at  the  port  of  ,  preparing 
for  a  voyage  from  said  port  to             in 

4.  That  on  the  day  of  ,  19  ,  the  said  ship  sailed  from 
said  port  of  on  the  voyage  described  in  said  policy,  and  while 
proceeding  thereon  was  by  the  perils  of  the  sea  wrecked  and  totally 
lost.     [Or  state  other  cause  of  loss.] 

5.  That  the  plaintiff  was,  at  the  time  of  the  risk,  and  thereafter, 
until  said  loss,  the  owner  of  said  ship,  and  was  interested  therein  to 
an  amount  exceeding  $  ,  namely,  in  the  sum  of  $  ,  which 
was  the  value  of  said  ship. 

6.  That  plaintiff  duly  performed  all  of  the  conditions  of  said 
policy  on  his  part,  and  after  said  loss  and  destruction  of  said  ship, 
he  gave,  on  the  day  of  ,  19  ,  to  the  defendant  notice 
and  proof  of  said  loss  and  destruction,  and  demanded  of  defendant 
said  sum  of  $  ,  the  amount  of  said  insurance  money;  but  the 
defendant  has  not  paid  said  money  nor  any  part  thereof,  and  the 
whole  thereof  remains  due  and  unpaid  from  the  defendant  to 
plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  said 
sum  of  $  ,  and  interest  thereon  from  the  day  of  , 

19     ,  and  plaintiff's  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  717— Complaint  on  open   marine   policy. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  at  all  the  times  hereinafter  mentioned  the  defendant  was, 
and  now  is,  a  corporation  created,  organized,  and  existing  under  the 

laws  of 

2.  That  on  the  day  of  ,  19  ,  in  consideration  of  the 
premium  of  $  paid  to  it  by  the  plaintiff,  the  defendant  made  to 
plaintiff  a  policy  of  insurance  in  writing,  in  the  words  and  figures 
following,  to  wit:  [Insert  copy,  or,  if  preferred,  annex,  and  refer  to 
the  same  as  an  exhibit.] 

3.  That  the  ship  on  which  said  insured  property  was  laden  [or  was 


oh.  XCVI.]  COMPLAINTS   [OR  PETITIOXSJ.— FORMS.  l;J49 

about  to  be  laden]  was  then  lying  at  the  port  of  ,  preparing  for 

a  voyage  from  said  port  to  in 

4.  That  plaintiff  was  at  the  time  of  the  commencement  of  the  risk, 
and  at  the  time  of  the  loss  hereinafter  mentioned,  the  owner  of  the 
property  described  in  said  policy,  insured  as  aforesaid  [or  the  special 
interest  therein  insured],  and  that  plaintiff's  said  interest  in  said 
property  exceeded  the  sum  of  $  ;  that  the  value  of  said  insured 
property  laden  on  said  ship  was,  when  laden,  and  until  the  losa 
thereof  hereinafter  alleged,  $ 

5.  That  on  the  day  of  ,  19  ,  the  said  ship  sailed  from 
said  on  the  voyage  described  in  the  policy,  and  while  proceed- 
ing thereon  all  of  said  insured  property  so  laden  on  said  ship  [or  the 
special  interest  of  plaintiff  therein  insured]  was  destroyed  by  the 
perils  of  the  sea  [or  state  any  other  cause  of  loss  insured  against], 
to  the  loss  of  plaintiff  in  the  sum  of  $ 

6.  That  plaintiff  duly  performed  all  of  the  conditions  of  said 
policy  on  his  part,  and  on  the  day  of  ,  19  ,  he  gave  to 
defendant  notice  and  proof  of  said  loss,  and  demanded  of  the 
defendant  the  sum  of  $  ,  the  amount  of  said  insurance  money, 
but  the  defendant  has  not  paid  the  same,  nor  any  part  thereof,  and 
the  whole  thereof  is  due  and  unpaid  from  the  defendant  to  the 
plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  $  ,  and  interest  thereon  from  the  day  of  , 

and  plaintiff's  costs  of  suit.  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  718 — On  vessel  lost  by  perils  of  the  sea. 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  [Averment  of  incorporation  of  defendant.] 

2.  That  he  was  the  owner  of  [or  had  an  interest  in]  the  ship 
(naming  the  same]  at  the  time  of  its  insurance  and  loss,  as  herein- 
after mentioned. 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant, 
in  consideration  of  $  to  it  paid  [or  which  the  plaintiff  then 
promised  to  pay] ,  executed  and  delivered  to  the  plaintiff  a  policy  of 
insurance  upon  the  said  ship,  a  copy  of  which  is  hereto  attached, 
marked  "Exhibit  A,"  and  made  a  part  of  this  complaint.  [Or 
whereby  it  promised  to  pay  to  the  plaintiff,  within  days  after 

Jury's  PI.— 86. 


1350  INSURANCE.  [Tit.  XII. 

proof  of  loss  and  interest,  all  loss  and  damage  accruing  to  him  by- 
reason  of  the  destruction  or  injury  of  the  said  ship  during  its  next 
voyage  from  to  ,  whether  by  perils  of  the  sea,  or  by  fire, 

or  by  other  causes  therein  mentioned,  not  exceeding  $  .] 

4.  That  the  said  vessel,  while  proceeding  on  the  voyage  mentioned 
in  said  policy,  was,  on  the  day  of  ,  19  ,  totally  lost  and 
destroyed  by  the  perils  of  the  sea. 

5.  That  the  plaintiff's  loss  thereby  was  $ 

6.  That  on  the  day  of  ,  19  ,  the  plaintiff  furnished  the 
defendant  with  proof  of  his  loss  and  interest,  and  otherwise  duly 
performed  all  the  conditions  of  the  said  policy  on  his  part. 

7.  That  the  defendant  has  not  paid  the  said  loss,  and  the  same  is 
still  wholly  due  and  unpaid  from  defendant  to  plaintiff. 

[Concluding  part.] 

FORM   No.  719 — For  partial  loss  and  contribution. — Marine  policy. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 

1-3.   [As  in  preceding  form.] 

4.  That  on  the  day  of  ,  19     ,  said  vessel  sailed  from 

on  the  said  voyage,  and  while  proceeding  thereon  was,  by 
the  perils  of  the  sea,  stranded  and  damaged  in  her  hull,  machinery, 
and  appurtenances,  whereby  it  became  necessary  for  the  preservation 
of  the  vessel  and  her  cargo  to  throw  overboard  a  part  of  said  cargo, 
and  the  same  was  accordingly  thrown  over  for  that  purpose. 

5.  That  by  reason  thereof,  the  plaintiff  was  compelled  to  expend 
$  in  repairing  said  vessel  at  ,  and  also  to  pay  $  as 
contribution  for  the  loss  caused  by  said  throwing  overboard  of  part 
of  the  cargo. 

6.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
gave  to  the  defendants  due  notice  and  proof  of  the  loss  as  aforesaid, 
and  otherwise  duly  performed  all  the  conditions  of  said  policy  of 
insurance  on  his  part. 

7.  [Same  as  paragraph  7,  preceding  form.] 
[Concluding  part.] 

FORM   No.  720 — Allegation  of  renewal. 

[Title  of  court  and  cause.] 

That  on  the  day  of  ,  19     ,  at  ,  the  defendants,  by 

their  agents  duly  authorized  thereto,  in  consideration  of  $  to 


Cil  XCVI.]  ANSWERS— FORMS. 


1351 


them  paid  by  the  plaintiff,  executed  and  delivered  to  this  plaintiff 
their  certificate  of  renewal  of  said  policy,  a  copy  of  which  is  hereto 
annexed  as  a  part  of  this  complaint  [or  petition]. 

FORM  No.  721— Averment  where  plaintiff  purchased  the  property  after 
insurance. 

[Title  of  court  and  cause.] 

That  on  the  day  of  ,  19     ,  at  ,  with  the  consent 

of  the  defendants,  in  writing,  on  said  policy,  by  their  agents,  the 
said  [original  insured]  sold,  assigned,  and  conveyed  to  the  plaintiff 
his  interest  in  the  said  [property]  and  in  the  said  policy  of  insurance. 

FORM   No.  722 — Averment  of  waiver  of  condition. 

[Title  of  court  and  cause.] 

On  the  day  of  ,  19     ,  the  defendants  waived  the  condi- 

tion of  the  policy  requiring  [set  out  the  condition],  and  released  the 
plaintiff  from  the  performance  thereof  by  [state  how  condition  was 
released], 

§342.     ANSWERS. 

FORM   No.  723— Denial  of  policy. 

[Title  of  court  and  cause.] 

The  defendant  answering  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  he  ever  made  or  delivered  the  policy  of  insurance 
therein  alleged,  or  any  policy  of  insurance  whatsoever,  upon  the 
property  described  [or  upon  any  property  belonging  to  plaintiff] 

[Etc.] 

FORM   No.  724— Denial  of  plaintiff's  interest. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Defendant  denies  that  the  plaintiff  owned  or  had  any  insurable 
interest  whatever  in  the  goods  or  chattels  [or  premises]  in  the  com- 
plaint [or  petition]  described  at  the  time  of  the  happening  of  the 
loss  in  said  complaint  [or  petition]  alleged. 

FORM   No.  725 — Defense  based  upon  denial  of  loss. 
[Title  of  court  and  cause.] 
[After  introductory  part:] 
Defendant  avers  that  the  loss  therein  described  was  not  caused 


1352  INSURANCE.  [Tit.  XII. 

during  the  term  of  said  insurance  by  any  of  the  perils  insured 
against,  but  said  loss  was  occasioned  and  caused  wholly  by  [indicate 
the  excepted  peril]. 

FORM   No.  726 — Defense  of  misrepresentation  and  concealment. 

[Title  of  court  and  cause.] 

[Introductory  part:] 

That  the  defendants  were  induced  to  make  and  deliver  the  policy 
of  insurance  therein  described  by  the  fraudulent  concealment  and 
misrepresentations  of  the  plaintiff  made  to  the  defendants  of  the 
following  facts  known  to  the  plaintiff,  the  same  being  material  to 
the  risk  and  not  known  to  the  defendants,  and  which  if  known  would 
have  increased  the  premium,  to  wit:  [Set  out  particular  facts  con- 
cealed or  misrepresented.] 

FORM   No.  727 — Defense  setting  forth  "fallen  building"  clause  in  action  upon 
fire  insurance  policy. 

[Title  of  court  and  cause.] 

Now  comes  the  defendant,  and  for  answer  to  plaintiff's  complaint: 

Denies  that  no  part  of  said  building  fell  except  as  the  result  of  said  fire;  but, 
on  the  contrary,  alleges  that  before  the  loss  or  damage  by  fire,  or  any  part  thereof, 
in  said  complaint  referred  to  occurred  said  building  fell  in  whole  or  in  part,  other- 
wise than  as  the  result  of  fire,  by  reason  whereof  all  insurance  by  the  said  policy 
on  said  building  did  immediately  cease,  and  the  said  policy  was  not  in  force  or 
effect  at  the  time  the  said  property  was  damaged  or  destroyed  by  fire  [etc.]. 

Wherefore,  defendant  prays  to  be  hence  dismissed  with  its  costs. 

C.  D.,  Attorney  for  defendant. 

[Verification.] 

[The  defense  set  out  in  substance  in  form  No.  727  was  interposed  to  the  com- 
plaint in  form  No.  709.  The  facts,  however,  did  not  sustain  the  averment  of  the 
defense,  and  judgment  was  therefore  rendered  the  plaintiff  and  affirmed  on  appeal: 
Clayburgh  v.  Agricultural  Ins.  Co.,  155  Cal.  708,  102  Pac.  812.] 

FORM   No.  728 — Defense  of  overlnsurance  without  consent  of  insurer. 

[Title  of  court  and  cause.] 
[Introductory  part:] 

1.  That  by  the  terms  of  the  said  insurance  policy  the  same  shall 
become  void  in  case  the  assured  shall  have,  or  shall  thereafter  pro- 
cure, other  insurance,  unless  consent  therefor  was  given  by  these 
defendants  and  endorsed  on  said  policy. 

2.  That  before  [after;  or,  at  the  time  of]  granting  the  policy  sued 
on,  the  plaintiff  became  insured  on  the  same  property  in  another 
company,  to  which  the  defendants  never  consented,  nor  was  any 
consent  endorsed  on  the  policy. 


Ch.  XCVI.]  ANSWERS— FORMS.  1353 

FORM   No.  729— Defenses— (1)    denial    of   furnishing    proofs    of    death,    (2) 
denial  of  indebtedness,  (3)  denial  of  waiver  of  conditions. 
—In   general    defense  of  forfeiture  of  policy  for  non-pay- 
ment of  premium. 
(Blake  v.  National  Life  Insurance  Co.,  123  Cal.  470;  56  Pac.  101.) 
[Title  of  court  and  cause.] 

Now  comes  the  defendant  in  the  above-entitled  action,  and  answer- 
ing the  first  cause  of  action  set  forth  in  plaintiff's  complaint: 

[Denial  of  furnishing  proofs  of  death.] 

Denies  that  on  the  14th  day  of  March,  1894,  or  at  any  other  time, 
plaintiff  furnished  defendant  with  satisfactory  proofs  or  any  proofs 
of  the  death  of  said  deceased,  as  required  by  the  terms  of  said  policy, 
and  denies  that  said  deceased  in  his  lifetime,  or  that  plaintiff  as 
executrix,  duly  or  at  all  performed  all  or  any  of  the  conditions  and 
requirements,  or  conditions  or  requirements,  of  said  contract  of 
insurance  on  his  or  her  part. 

[Denial  of  indebtedness  under  the  policy.] 

Denies  that  there  is  now  due  and  owing,  or  due  or  owing,  from  said 
defendant  to  said  plaintiff,  as  such  executrix  or  otherwise,  upon  or 
on  account  of  said  policy  of  insurance,  the  sum  of  $10,000,  with 
interest  thereon  at  the  rate  of  seven  per  cent  per  annum  from  the 
14th  day  of  March,  1894,  or  that  there  ever  was  or  is  due  or  owing 
from  defendant  to  plaintiff  any  sum  of  money  whatever. 

2.  And  answering  the  second  cause  of  action  set  forth  in  plaintiff's 
complaint,  defendant  [here  follows  denial  of  furnishing  proofs  of 
death,  and  of  performance  of  conditions,  etc.,  as  in  first  paragraph]. 

[Denial  of  averments  as  to  waiver  of  conditions,  etc.] 

Defendant  admits  that  said  deceased  in  his  lifetime  and  said 
executrix  did  not  perform  the  conditions  in  said  policy  of  insurance, 
which  provided  that  failure  to  pay  any  premium  or  any  part  thereof 
or  any  note  given  therefor  when  due  should  cancel  the  insurance  and 
said  contract,  but  denies  that  during  the  lifetime  of  said  Charles  E. 
Blake,  or  at  any  time,  defendant  for  a  valuable  or  any  consideration, 
or  at  all,  waived  the  said  condition  or  any  portion  thereof. 

And  in  this  behalf  defendant  avers,  that  it  at  no  time  made  any 
agreement  whatever  with  said  Charles  E.  Blake,  or  with  any  other 
person,  waiving  the  condition  of  payment  of  the  premium  payable  on 
the  26th  day  of  December,  1893,  or  extending  the  time  of  payment 


1354  INSURANCE.  [Tit.  XII. 

of  said  premium,  or  any  premiums,  or  giving  him  credit  therefor,  or 
that  it  at  any  time  waived  any  of  the  conditions  of  said  policy;  on 
the  contrary,  defendant  avers  that  it  refused  to  extend  the  time  of 
payment  of  said  premium  due  on  the  26th  day  of  December,  1893,  or 
to  give  said  Charles  E.  Blake  credit  therefor. 

Wherefore,  defendant  prays  to  be  hence  dismissed  with  its  costs. 

Dated  this  15th  day  of  November,  1894. 

Metcalf  &  Metcalf, 

[Verification.]  Attorneys  for  defendant. 

FORM   No.  730 — Transfer   without    insurer's    consent. 
[Title  of  court  and  cause.] 
[Commencement.] 

1.  That  the  said  insurance  policy  therein  described  provides, 
among  other  things,  that  in  case  of  any  transfer  of  the  interest  of  the 
insured  by  sale  or  otherwise,  without  the  consent  of  the  insurer,  the 
policy  should  from  thenceforth  be  void. 

2.  That  on  the  day  of  ,  19  ,  and  before  the  loss 
alleged,  the  interest  of  the  insured  in  said  property  was  transferred 
to  ,  without  the  consent  of  the  defendants,  whereby  the  said 
policy  became  void. 

FORM   No.  731 — Defense  that  a  fraudulent  account  of  loss  was  given. 

[Title  of  court  and  cause.] 

[After  the  introductory  part:] 

That  after  the  alleged  loss  and  damage,  and  before  the  commence- 
ment of  this  action,  the  plaintiff  made  and  delivered  to  the  defend- 
ants a  false  and  fraudulent  account  of  the  alleged  loss  and  damage 
in  this :    [Here  specify  the  particular  acts  of  fraud.] 

[Concluding  part.] 

FORM   No.  732— Defense  that  risk  was  extra-hazardous. 

[Title  of  court  and  cause.] 
[After  introductory  part:] 

1.  [Allege  provisions  of  policy  exempting  from  liability  for  extra- 
hazardous risks.] 

2.  That  after  the  making  of  said  policy,  and  before  the  loss 
alleged,  the  plaintiff  received  into  said  store  a  large  quantity  of 
goods  known  and  described  as  extra-hazardous,  to  wit,   [here  spec- 


Ch.  XCVI.]  ANSWERS.— FORMS.  1355 

ify] ;  and  at  the  time  of  the  said  fire,  the  plaintiff  had  in  said  store  a 
large  quantity  of  such  extra-hazardous  goods. 
[Concluding  part.] 

FORM   No.  733 — Denial  of  loss  from  peril  or  risk  insured  against. 

[Title  of  court  and  cause.] 

Defendant  denies  that  the  said  building  was  destroyed  [or  injured] 
during  the  term  of  said  insurance  by  [here  state  risks  or  perils 
insured  against],  but,  on  the  contrary,  the  defendant  alleges  that 
the  loss  was  occasioned  and  caused  wholly  by  [here  state  the  excepted 
peril  which  caused  the  loss]. 

[Concluding  part.] 

FORM   No.  734 — Defense  that  vessel  was  unseaworthy. 

[Title  of  court  and  cause.] 

1.  [Allege  provisions  of  policy,  as  to  voiding  the  policy  for  unsea- 
worthiness.] 

2.  That  at  ,  and  in  the  course  of  said  voyage,  and  in  refer- 
ence to  the  said  voyage,  and  to  any  damage  which  the  said  ship  sus- 
tained in  the  course  thereof,  a  regular  survey  was  made  on  the 

day  of  ,  19     ,  and  that  upon  such  survey  the  said  ship  was 

declared  unseaworthy,  by  reason  of  her  being    [state  particulars, 
showing  a  ground  of  her  condemnation  as  unseaworthy] . 
[Concluding  part.] 

Form  of  answer  in  an  action  on  an  insurance  policy,  setting  forth  the  defense 
based  on  a  provision  that  in  case  of  loss  the  insured  should  within  sixty  days 
render  to  the  company  an  account  of  the  loss,  signed  and  sworn  to:  Western 
Home  Ins.  Co.  v.  Thorp,  48  Kan.  239,  240,  28  Pac.  991. 

Form  of  petition  in  an  action  to  recover  a  sum  alleged  to  be  due  on  a  matured 
endowment  coupon  issued  by  defendant  to  plaintiff:  Hogan  v.  Pacific  Endowment 
League,  99   ^-al.   248,   250,  33  Pac.  924. 

Form  of  petition  in  an  action  on  a  life  insurance  policy,  containing  a  provision, 
relied  upon  by  the  defendant  as  not  observed  by  decedent,  that  if  the  insured 
should  become  so  intemperate  as  to  impair  his  health  or  induce  delirium  tremens, 
the  policy  should  become  void:  Pomeroy  v.  Rocky  Mountain  Ins.  etc.  Inst.,  9  Colo. 
295,   12   Pac.   153,   59  Am.   Rep.   144. 

Form  of  petition  in  an  action  on  an  insurance  policy,  which  did  not  properly 
describe  the  real  estate  on  which  the  dwelling-house  that  was  burned  was  situ- 
ated: Kansas  Farmers'  Fire  Ins.  Co.  v.  Saindon,  52  Kan.  486,  488,  35  Pac.  15,  16, 
39  Am.   St.   Rep.  356. 

Form  of  complaint  in  an  action  on  a  fire  insurance  policy  on  growing  crops: 
Denver  Fire  Ins.  Co.  v.  McClelland,  9  Colo.  12,  9  Pac.  771,  59  Am.  Rep.  134. 

For  defenses  in  an  action  at  law  upon  a  policy  of  fire  insurance  held  sufficient 
as  against  general  demurrer,  see  Slafter  v.  Concordia  Fire  Ins.  Co.,  142  Iowa  116, 
120  N.  W.   706.   708. 


1356 


INSURANCE. 


[Tit.  XII. 


For  an  agreed  statement  of  the  facts  in  an  action  to  recover  upon  an  Insurance 
policy,  see  Dodge  v.  Hamburg-Bremen  Fire  Ins.  Co.,  4  Kan.  App.  415,  418,  46 
Pac.  26,  26. 

§343.     ANNOTATIONS.— Insurance. 

1.  Life  insurance. — Essentials  of  a  complaint  in  action  to  recover  insurance 

moneys. 

2.  Insurable  interest  not  required  to  be  averred. 

3.  Defenses  in  action  to  recover  insurance  money. 

4.  Property   insurance. — General  rule  as   to  pleading  loss. 

5.  Averments  as  to  ownership. 

6.  General  averment  as  to  performance  of  conditions. 
7,  8.  Defenses. — Any  breach  pleadable. 

9,  10.  Defense  of  fraudulent  overvaluation. 


1.  LIFE  INSURANCE.— Essentials  of  a 
complaint  in  action  to  recover  insur- 
ance moneys. — A  complaint  in  an  action 
to  recover  insurance  moneys,  under  the 
rule  as  established  in  the  state  of  Colo- 
rado, is  only  required  to  allege  primarily, 
first,  the  contract  of  insurance;  secondly, 
the  happening  of  the  contingency  where- 
by the  insurer  became  liable  to  pay  by 
reason  of  the  contract;  and  thirdly,  the 
amount  of  the  indemnity  to  which  the 
insurer  or  his  successors,  in  the  event  of 
his  death,  is  entitled:  Grand  Lodge 
A.  O.  U.  W.  v.  Taylor,  44  Colo.  373,  99 
Pac.  570,  571;  Penn  Mutual  L.  Ins.  Co. 
v.  Ornauer,  39  Colo.  49S,  90  Pac.  846; 
National  Ins.  Co.  v.  Sprague,  40  Colo. 
344,   92   Pac.    227. 

2.  Insurable  interest  not  required  to  be 
averred. — In  an  action  to  recover  insur- 
ance upon  the  death  of  the  insured,  it  is 
not  necessary  for  the  plaintiff  to  aver 
any  interest  in  the  life  of  the  insured. 
If  the  insurer  relies  on  the  defense  that 
the  plaintiff  had  no  insurable  interest  in 
the  life  of  the  insured,  it  devolves  upon 

*it  to  plead  and  prove  it.  Where  the 
question  is  not  put  in  issue  by  the 
pleadings,  the  court  rightfully  refuses  to 
submit  it  to  the  jury:  Foresters  of  Amer- 
ica v.  Hollis,  70  Kan.  71,  78  Pac.  160, 
3  Am.   &  Eng.   Ann.   Cas.   535. 

3.  Defenses  in  action  to  recover  insur- 
ance money. — In  an  action  to  recover 
insurance  money  instituted  by  the  rep- 
resentative of  the  deceased,  the  follow- 
ing is  given  as  a  statement  of  affirma- 
tive defenses,  which,  although  not 
sustained  by  the  evidence  in  the  case,  is 
a  fairly  clear  and  concise  example  of 
pleading  affirmative  defenses  in  such 
actions,  to  wit:  (1)  That  in  his  appli- 
cation for  insurance  the  deceased  falsely 
and  fraudulently  represented  that  he  was 
in    good    health    and    free    from    disease; 


that  he  had  had  no  sickness  during  the 
past  five  years;  that  he  had  no  disease 
of  the  kidneys  or  urinary  organs;  that 
he  had  not  consulted  a  physician  for 
four  years  prior  to  the  date  of  his  ap- 
plication; that  in  truth  and  in  fact,  at 
the  time  of  making  such  application, 
the  deceased  well  knew  that  he  was  not 
in  good  health  nor  free  from  disease; 
that  he  had  consulted  a  physician 
about  three  months  prior  to  the  date  of 
his  application,  and  was  by  him  in- 
formed that  he  was  afflicted  with  a  dis- 
ease of  the  kidneys  and  urinary  or- 
gans; that  said  representations  were 
falsely  and  fraudulently  made  by  the 
deceased  for  the  purpose  of  obtaining 
said  policies;  and  that  the  defendant 
relied  on  said  false  and  fraudulent  rep- 
resentations. (2)  That  in  his  application 
for  insurance  the  deceased  warranted 
the  statements  and  answers  therein 
made  to  be  full,  complete,  and  true,  and 
that  any  untrue  answers  made  therein 
or  any  concealment  of  the  truth  as  to 
his  health,  physical  condition,  or  per- 
sonal or  family  history  should  forfeit 
and  cancel  the  policies  issued  pursuant 
to  such  application;  that  the  applica- 
tion contained  the  warranties  and  rep- 
resentations set  forth  in  the  first  affirm- 
ative defense;  that  the  defendant  relied 
on  such  warranties  and  representations, 
and  issued  the  policies  in  consideration 
thereof;  and  that  the  warranties  and 
representations  were  untrue.  (3)  That 
the  application  provides  that  the  pol- 
icies should  not  take  effect  unless  the 
first  payment  was  made  and  the  policies 
signed  by  the  secretary  and  delivered 
during  the  continuance  of  the  applicant 
in  good  health,  and  that  at  the  time 
the  first  payment  was  made  and  the 
certificate  signed  and  delivered  the  ap- 
plicant  was   not   in   good   health:     Fer- 


Ch.  XCVI.] 


ANNOTATIONS. 


1357 


randini  v.  Bankers  Life  Assn.,  51  Wash. 
442,    99   Pac.    6,    7. 

4.  PROPERTY  INSURANCE.  —  Gen- 
eral rule  as  to  pleading  loss. — A  com- 
plaint in  an  action  to  recover  upon  a 
policy  insuring  against  loss  must  allege 
facts  bringing  the  destruction  of  the 
property  within  the  protection  of  the 
policy;  for  example,  where  a  policy  in- 
sured plaintiff  against  loss  arising  from 
the  death  of  his  horses  occurring  from 
"disease  or  accident,"  a  pleading  is  in- 
sufficient on  demurrer  where  there  is 
no  averment  that  either  disease  or  acci- 
dent was  the  cause  of  the  death:  Knut- 
zen  v.  National  L.  S.  I.  Co.,  108  Minn. 
163,  121  N.  W.  632;  Griggs  v.  St.  Paul, 
9  Minn.  246  (Gil.  231);  Newman  v.  Ac- 
cident Assn.,  15  Ind.  App.  29,  42  N.  B. 
650;  Weltin  v.  Ins.  Co.,  59  Hun  625,  13 
N.   Y.   Supp.   700. 

5.  Averments  as  to  ownership. — In  an 
action  to  recover  upon  an  insurance 
policy,  an  objection  to  the  petition  that 
it  omitted  to  allege  specifically  that 
plaintiff  owned  the  property  insured  at 
the  time  of  the  loss  can  not  first  be 
taken  after  judgment.  Moreover,  such 
an  objection  is  without  force  where 
sufficient  facts  are  alleged  from  which 
the  ownership  of  the  property  at  the 
time  of  the  loss  may  be  implied:  Cox 
v.  American  Ins.  Co.,  137  Mo.  App.  40, 
119  S.  W.  476,  478;  Rodgers  v.  Insur- 
ance Co.,  186  Mo.  248,  85  S.  W.  369. 

6.  General  averment  of  performance 
of  conditions. — It  is  well  settled  under 
the  Missouri  authorities,  that,  under  a 
general  averment  of  performance  of  all 
conditions  on  his  part  to  be  performed, 
the  plaintiff  in  an  action  on  an  insur- 
ance policy  may  prove  any  and  all  forms 
of  waiver.  It  is  said  the  proof  of  waiver 
is  included  in  performance  within  the 
meaning  of  the  allegation;  but  that  the 
rule  does  not  apply  to  other  than  insur- 
ance cases:  Andrus  v.  Insurance  Co., 
168  Mo.  151,  67  S.  W.  582;  McCullough 
v.  Insurance  Co.,  113  Mo.  607,  21  S.  W. 
207;  Murphy  v.  Insurance  Co.,  70  Mo. 
App.  7S;  Winn  V.  Insurance  Co.,  83  Mo. 
App.  123;  Wicecarver  v.  Mercantile  etc. 
I.   Co.,   137  Mo.   App.   247,   117   S.  W.   698, 

7.  Defenses. — Defense  to  action  upon 
fire  insurance  policy  based  upon  viola- 
tion of  vacancy-permitting  clause  con- 
tained in  the  policy,  considered:  Na- 
tional M  F.  I.  Co.  v.  Duncan,  44  Colo. 
472,  98  Pac.  634,  638,  20  L.  R.  A.  (N.  S.) 
240. 


8.  Any  breach  by  the  insured  of  a 
condition  in  the  policy  may  be  pleaded 
in  defense  in  an  action  to  recover 
thereon.  It  is  a  good  defense  to  an 
action  upon  a  policy  of  insurance  to  set 
out  a  breach  of  a  condition  under  the 
contract  imposing  a  duty  upon  the 
plaintiff  to  protect  the  property  so  far 
as  practicable  in  case  of  fire,  as  where 
the  defense  alleges  in  this  respect  that 
the  plaintiff  permitted  persons  to  enter 
the  building  after  the  fire,  to  handle 
and  carry  away  some  of  the  property 
covered  by  the  policy,  and  to  trespass 
upon  the  property:  Slafter  v.  Concordia 
Fire  Ins.  Co.,  142  Iowa  116,  120  N.  W. 
706,  70S;  Thornton  v.  Security  Co.  (C. 
C),  117  Fed.  773;  Oshkosh  v.  Manches- 
ter Co.,  92  Wis.   510,  66  N.  W.  525. 

9.  The  defense  of  fraudulent  overval- 
uation of  property  deemed  sufficient: 
Slafter  v.  Concordia  F.  I.  Co.,  142  Iowa 
116,  120  N.  W.  706,  709;  Behrens  v.  In- 
surance Co.,  64  Iowa,  19,  19  N.  W.  838; 
Bennett  v.  Insurance  Co.,  51  Conn.  504; 
American  Ins.  Co.  v.  Gilbert,  27  Mich. 
429;  Dunham  v.  Insurance  Co.,  34  Wash. 
205,  75  Pac.  804;  Hartford  Co.  v.  Magee, 
47  111.  App.  367;  Lycoming  Co.  v.  Rubin„ 
79  111.  402;  Baker  v.  Insurance  Co.,  31 
Ore.  41,  48  Pac.  699,  65  Am.  St.  Rep. 
807;  Phenix  Co.  v.  Pickel,  119  Ind.  155, 
21  N.  E.  546,  12  Am.  St.  Rep.  393;  Titus 
v.  Insurance  Co.,   81  N.  Y.   410. 

10.  Defense  of  overvaluation  held  good 
as  against  general  demurrer,  and  that 
it  was  error  to  sustain  such  demurrer 
thereto.  Defense  is  as  follows:  "(5) 
For  a  further  and  5th  defense,  this  de- 
fendant says:  That  the  policy  of  insur- 
ance so  issued  to  the  plaintiff  by  the 
defendant,  as  in  the  plaintiff's  complaint 
set  forth,  contained  the  following  pro- 
vision: 'This  policy  is  made  and  issued 
subject  to  the  foregoing  stipulations, 
conditions  and  by-laws  of  the  National 
Mutual  Fire  Insurance  Company.'  That 
article  thirty-two  of  the  by-laws  of 
the  defendant  company  is  as  follows: 
'The  application,  by-laws  and  policy 
constitute      the      entire      contract      be- 

.  tween  this  company  and  the  insured, 
and  no  officer,  agent,  or  representative 
of  the  company  is  authorized,  empow- 
ered, or  permitted  to  make  any  other 
verbal  or  written  agreement  in  refer- 
ence to  any  matter  pertaining  thereto.' 
That  article  fifteen  of  the  by-laws  of 
the  defendant  corporation  is  as  follows: 
'All  applications   for  insurance   must  be 


1358 


NEGOTIABLE  INSTRUMENTS. 


[Tit.  XII. 


in  writing,  according  to  the  printed 
forms  prepared  by  the  company.  The 
description  of  the  property  and  its  loca- 
tion must  be  minute  and  particular,  and 
the  applicant  must  be  responsible  for 
the  correctness  of  the  application;  and 
any  mis>-epresentation  in  reference  to 
said  property  shall  void  such  policy,  and 
no  agreement  or  representation  other 
than  expressed  in  said  application  shall 
be  binding  upon  the  company.'  That 
an  application  to  the  defendant  by  the 
plaintiff  was  made  in  writing  for  the 
issuance  of  the  policy  mentioned  in 
complaint,  which  said  application  was 
duly  signed  by  the  plaintiff;  that  said 
application  contained  the  following  pro- 
visions: 'The  above  statements,  notes, 
and  by-laws,  as  printed,  shall  be  the 
sole  basis  of  this  contract  for  insurance 
between  said  company  and  the  insured, 
and  are  hereby  made  a  part  of  this 
policy,  if  issued.  Having  read  or  heard 
read  the  foregoing  application,  and  fully 
understanding  its  contents,  I  warrant  it 


to  contain  a  full  and  true  description 
and  statement  of  the  condition,  situa- 
tion as  per  diagram,  value,  occupation, 
and  title  of  the  property  to  be  insured 
in  the  said  company,  and  I  warrant  the 
answers  to  each  of  the  foregoing  to  be 
true.'  That  said  policy  of  insurance 
contained  the  following  provision,  to 
wit:  'This  entire  policy  shall  be  void 
if  the  insurer  has  concealed,  or  mis- 
represented, in  writing  or  otherwise, 
any  material  fact  or  circumstance  con- 
cerning this  insurance  or  the  subject 
thereof.'  And  the  defendant  further 
says  that  in  the  plaintiff's  application 
for  said  policy  of  insurance  the  plaintiff 
falsely  stated  and  represented  that  the 
cash  value  of  the  insured  building  was 
$1,500;  whereas,  in  truth  and  in  fact, 
the  cash  value  of  said  building  at  the 
time  of  said  application,  and  at  all 
times  thereafter,  did  not  exceed  the 
sum  of  $200":  National  M.  F.  I.  Co. 
v.  Duncan,  44  Colo.  472,  98  Pac.  634,  20 
L.    R.   A.    (N.   S.)    340. 


§344. 


CHAPTER   XCVII. 

Negotiable  Instruments. 

Page 

Complaints   [or  petitions]    1360 

Form  No.  735.  By  first  endorsee  against  maker 1360 

Form  No.  736.  By  subsequent  endorsee  against  maker 1361 

Form  No.  737.  By  first  endorsee  against  first  endorser 1361 

Form  No.  738.  By    subsequent    endorsee    against    immediate 

endorser 1361 

Form  No.  739.  By  subsequent  endorsee  against  first  endorser  1361 

Form  No.  740.  By  subsequent  endorsee  against  all  prior  parties  1362 

Form  No.  741.  On  note  wrongly  dated  1362 

Form  No.  742.  On  sight  note  1362 

Form  No.  743.  By    domestic    corporation,    payee,    against    for- 
eign corporation   1363 

Form  No.  744.  By  payee  as  receiver  against  partners 1363 

Form  No.  745.  By  partners  on  note  payable  to  firm 1363 

Form  No.  746.  By  payee  against  surviving  partner 1364 

Form  No.  747.  Averments  as  to  partnership  promissory  note 

endorsed  to  plaintiffs    1364 

Form  No.  748.  By  partners  on  protested  promissory  note 1365 

Form  No.  749.  On  note  signed  by  agent 1366 

Form  No.  750.  Upon  a  promissory  note  executed  by  an  agent 

of  a,  partnership  1366 

Form  No.  751.  Upon  a  joint  and  several  promissory  note 1367 

Form  No.  752.  On  note  executed  in  another  state 1367 


Ch.  XCVIL]  NEGOTIABLE   INSTRUMENTS.  135'J 

Form  No.  753.  By  payee  of  bill  against  acceptor  for  non-pay- 
ment       136^ 

Form  No.  754.  By  payee    of    bill    against    drawer    after    non- 
acceptance  1368 

Form  No.  755.  For  non-payment  of  bill  payable  on  specific  date     1368 
Form  No.  756.  By  assignee  of  bill  payable  out  of  particular 

fund    1369 

Form  No.  757.  By  payee  against  drawee  and  acceptor 1369 

Form  No.  758.  By  payee,  on  bill  accepted  for  bonor 1370 

Form  No.  759.  By  first  endorsee  of  bill  against  acceptor 1370 

Form  No.  760.  By  endorsee  of  bill  against  first  endorser 1371 

Form  No.  761.  By  remote    endorsee    against    drawer   and    en- 
dorser for  non-acceptance   1371 

Form  No.  762.  By  subsequent    endorsee   of   bill    against    first 

endorser 1372 

Form  No.  763.  By  subsequent  endorsee  of  bill   against  inter- 
mediate endorser   1372 

Form  No.  764.  By  subsequent   endorsee    of    bill    against    last 

endorser 1372 

Form  No.  765.  By  first  endorsee  of  bill  against  all  prior  parties     1373 
Form  No.  766.  By    subsequent     endorsee     against     all     prior 

parties    1373 

Form  No.  767.  Against  a  bank  upon  acceptance,  followed  by 

refusal  to  pay  cbeck  1374 

Form  No.  768.  Upon  an  accepted  and  assigned  draft 1374 

Form  No.  769.  By  payee  of  check  against  drawer 1375 

Form  No.  770.  By  endorsee  or  bearer  of  check  against  drawer     1375 
Form  No.  771.  By  endorsee  or  bearer  of  check  against  drawer 

and  endorser   1376 

Form  No.  772.  Omission  to  give  notice  excused  1376 

(  345.  Answers 1376 

Form  No.  773.  Defense  of  payment  before  endorsement 1376 

Form  No.  774.  Defense  of  no  consideration 1377 

Form  No.  775.  Defenses  of  want  of  consideration  and  fraud..     1377 
Form  No.  776.  Defense  of  no  consideration  based  upon  false 

warranty  of  goods  sold 1378 

Form  No.  777.  Defense  that  note  was  executed  for  a  pre-exist- 
ing indebtedness,  and  endorsed  by  an  officer 

of  a  corporation  without  consideration 1379 

Form  No.  778.  Defense  of  fraud  in  procuring  note 1379 

Form  No.  779.  Defense  of  mistake  in  amount  of  note 1380 

Form  No.  780.  Defense    that    acceptance    was    for    accommo- 
dation       1380 

Form  No.  781.  Defense  that  defendant  was  a  married  woman, 
and  signed  the  note  as  surety  only  for  her 

husband  1380 

Form  No.  782.  Defense  of  unauthorized  and  fraudulent  accept- 
ance       1381 


1360  NEGOTIABLE  INSTRUMENTS.  [Tit.  XIL 

Form  No.  783.  Defense  of  alteration  of  instrument.  (In  gen- 
eral.)         1381 

Form  No.  784.  Defense  based  upon  material  alteration  in  note 

by  changing  the  name  of  the  payor 1381 

Form  No.  785.  Defense  that  note  was  given  for  losses  sus- 
tained by  sale  of  "options  on  'change,"  a  ficti- 
tious and  gambling  transaction  1382 

Form  No.  786.  Defense  of  usury  in  making  note 1382 

Form  No.  787.  Defenses — (1)  denials,  (2)  dishonoring  of 
drafts  due  to  acts  of  plaintiff,  (3)  that  value 
of  property  was  offset  by  value  of  drafts,  (4) 
payment,  (5)  wrongful  diversion  of  surplus 
money  which  should  have  been  applied  to 
payment,  (6)  non-observance  of  instructions 
and  failure  to  enforce  lien,  (7)  failure  to  de- 
liver agreed  security. — Action  upon  guaranty 

of  drafts  with  bills  of  lading  attached 1383 

Form  No.  788.  Action  upon  guaranty  of  drafts   with  bills  of 

lading  attached   1390 

Form  No.  789.  Denial  of  endorsement 1393 

Form  No.  790.  Denial  of  acceptance   1393 

Form  No.  791.  Denial  of  acceptance,  presentment,  and  protest     1393 

Form  No.  792.  Denial  of  presentment  1394 

Form  No.  793.  Denying  excuse  for  non-presentment 1394 

Form  No.  794.  Denial  of  notice  1394 

Form  No.  795.  Counterclaim  in  action  upon  promissory  note..     1394 
5  346.  Annotations 1396 


§344.     COMPLAINTS  [OR  PETITIONS]. 

FORM    No.  735 — By  first  endorsee  against  maker. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
made  his  promissory  note  in  writing,  dated  on  that  day,  and  thereby 
promised  to  pay  to  the  order  of  one  C.  D.  $  ,  months 
after  said  date. 

2.  That  the  said  C.  D.  thereafter  endorsed  the  said  note  to  the 
plaintiff,  and  that  the  plaintiff  is  now  the  owner  and  holder  thereof. 

3.  That  the  said  sum  has  not  been  paid,  nor  any  part  thereof 
[except  the  sum  of,  etc.],  and  that  the  whole  thereof  [or  state,  if  a 
portion]  remains  due  and  payable  from  the  defendant  to  the  plaintiff. 

[Concluding  part] 


Ch.XCVII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1361 

FORM   No.  736 — By  subsequent  endorsee  against  maker. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [Allegation  of  execution  of  note.] 

2.  That  the  same  was  thereafter  endorsed  by  the  said  C.  D.  and 
one  E.  F.  and  one  G.  H.,  and  thereby  transferred  to  the  plaintiff,  who 
became,  and  now  is,  the  owner  thereof  for  value. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  737 — By  first  endorsee  against  first  endorser. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [Allegation  of  execution  of  note.] 

2.  That  then  and  there  [or  thereafter]  the  defendant  endorsed 
said  note  to  the  plaintiff,  who  is  now  the  owner  and  holder  thereof. 

3.  That  on  the  day  of  ,  19  ,  said  note  was  duly  pre- 
sented for  payment,  and  payment  thereof  demanded,  but  the  same 
was  not  paid;  that  due  notice  of  the  said  non-payment  thereof  was 
given  to  the  defendant. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  738 — By  subsequent  endorsee  against  immediate  endorser. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  C.  D.  made 
his  promissory  note  in  writing,  dated  on  that  day,  and  thereby  prom- 
ised to  pay  to  the  order  of  E.  F.,  $             ,             days  after  said  date. 

2.  That  the  said  E.  F.  thereafter  endorsed  the  said  note  to  the 
defendant,  and  the  defendant  endorsed  the  same  to  the  plaintiff  for 
value,  and  plaintiff  is  now  the  owner  and  holder  thereof. 

3.  4.   [Same  as  paragraphs  3  and  4,  form  No.  737.] 
[Concluding  part.] 

FORM   No.  739 — By  subsequent  endorsee  against  first  endorser. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 
1.  That  on  the  day  of  ,  19     ,  at  ,  one  C.  D.  made 

his  promissory  note  in  writing,  dated  on  that  day,  and  thereby  prom- 


1362  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

ised  to  pay  to  the  defendant,  or  order,  $  f  months  after 

said  date. 

2.  That  then  and  there  [or  thereafter]  the  defendant  endorsed 
said  note  to  one  E.  F.,  who  thereafter  by  endorsement  transferred 
the  same  to  the  plaintiff  for  value. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  740 — By  subsequent  endorsee  against  all  prior  parties. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
Y.  Z.  made  his  promissory  note  in  writing,  dated  on  that  day,  and 
thereby  promised  to  pay  to  the  order  of  the  defendant  W.  X.  $  , 

months  after  said  date. 

2.  That  the  said  W.  X.  endorsed  the  said  note  to  the  defendant 
U.  V.,  who  endorsed  the  same  to  the  plaintiff  for  value,  and  that  the 
plaintiff  is  now  the  owner  and  holder  thereof. 

3.  That  on  the  day  of  ,  19  ,  the  same  was  duly  pre- 
sented to  the  said  Y.  Z.  for  payment,  but  it  was  not  paid,  due  notice 
of  which  was  given  to  W.  X.  and  U.  V.  [Or,  aver  excuse  for  non- 
presentment.] 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  741 — On  note  wrongly  dated. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
made  and  delivered  to  the  plaintiff  his  promissory  note  in  writing,  of 
which  the  following  is  a  copy :  [Copy  of  note.]  That  by  mistake  said 
note  was  made  to  bear  date  on  the  day  of  ,  19  ,  instead 
of  the  said  day  of  ,  19  ,  which  latter  date  was  in  truth 
intended. 

2.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  742— On  sight  note. 
[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.   [Allegation  of  execution  of  note.] 


Ch.XCVII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  13(5 J 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  said  note 
was  duly  presented  to  the  defendant  [maker],  with  notice  that  pay- 
ment was  required  according  to  its  terms. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  743 — By  domestic  corporation,  payee,  against  foreign  corporation. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  [Allegation  of  incorporation  of  plaintiff.] 

2.  That  the  defendant  is  a  corporation,  duly  chartered  by  and 
under  the  laws  of  the  state  of  ,  pursuant  to  an  act  of  the  legis- 
lature of  said  state  entitled  [give  title  of  act],  passed  [give  date  of 
enactment]. 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant, 
as  such  corporation,  by  its  agent  duly  authorized  thereunto,  made  its 
promissory  note  in  writing,  dated  on  that  day,  and  thereby  promised 
to  pay  to  the  order  of  the  plaintiff,  under  its  corporate  name  of  , 
$  ,  months  after  said  date.  A  copy  of  said  note  is  hereto 
annexed,  marked  ''Exhibit  A,"  and  made  a  part  of  this  complaint  [or 
petition]. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  744 — By  payee  as  receiver  against  partners. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  heretofore  the  defendants,  under  their  firm  name  of  Y.  Z. 
&  Co.,  made  their  promissory  note  in  writing,  dated  the  day  of 

,  19     ,  and  thereby  promised  to  pay  to  the  plaintiff,  as  such 
receiver  [or  his  order],  $  ,  months  after  said  date. 

2.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  745 — By  partners  on  note  payable  to  firm. 

[Title  of  court  and  cause.] 

The  plaintiffs  complain  of  the  defendant,  and  allege: 

1.   [Allegation  of  copartnership.] 


13G4  JNEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
made  and  delivered  to  the  plaintiffs  his  promissory  note  in  writing, 
and  thereby  promised  to  pay  them  under  their  firm  name  of  A.  B.  & 
Co.  [or  their  order],  $  ,  months  after  said  date  [or  on 
the             day  of            ,  19     ]. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  746 — By  payee  against  surviving  partner. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  at  the  time  of  the  making  of  the  note  hereinafter  men- 
tioned, the  defendant  and  one  W.  X.  were  partners,  carrying  on 
business  under  the  firm  name  of  Y.  Z.  &  Co. 

2.  That  on  the  day  of  ,  19  ,  at  ,  they  made, 
under  said  firm  name,  their  promissory  note  in  writing  of  that  date, 
a  copy  of  which  is  as  follows:    [Insert  copy.] 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  said  W.  X. 
died,  leaving  the  defendant  the  sole  surviving  partner  of  said  firm. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
Wherefore,  the  plaintiff  prays  judgment  [etc.]. 

FORM   No.  747 — Averments  as  to  partnership   promissory  note  endorsed  to 
plaintiffs. 

(In  Hallock  v.  Jaudin,  34  Cal.  167,  168.)  * 
[Title  of  court  and  cause.] 

The  plaintiffs  complain  of  the  defendants,  and  allege : 

1.  That  on  the  15th  day  of  August,  1866,  the  defendants  [E.  Jaudin 

and  G.  Kennedy  were,  and  during  all  the  times  herein  mentioned 

have  been,  copartners  doing  business  under  the  firm  name  of  E. 

Jaudin  &  Co.]  ;  that  on  said  date  defendants,  as  such  copartners, 

l  While  the  complaint  (omitting  the  bracketed  portions)  in  Hallock  v.  Jaudin, 
supra,  was  held  sufficient  as  against  a  demurrer,  the  court  says  that  the  same 
would  have  been  more  artistic  and  logical  if  it  had  alleged  in  the  body  of  the  com- 
plaint that  the  defendants  were  copartners  in  business  at  the  time  the  note  was 
made,  and  that  the  firm  made  it,  and  further  that  the  complaint  avers  a  promise  to 
pay.  (Under  the  existing  California  statute,  a  promise  to  pay  is  implied  by  the 
written  instrument  itself,  as  the  same  imports  a  consideration.  See  section  1614  of 
Kerr's  Cyclopedic  Civil  Code  of  California  and  notes,  and  see  Henke  v.  Eureka 
Endowment  Assn.,  100  Cal.  429,  432,  34  Pac.  1089.  The  portion  of  the  complaint 
appearing  in  brackets  corrects  the  remaining  defects  pointed  out  in  the  decision.) 


Ch.  XCVIL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1365 

made  their  promissory  note  in  writing,  in  the  words  and  figures  fol- 
lowing, to  wit :    [Here  follows  copy.] 

2.  That  the  defendants  [thereupon]  delivered  the  said  note  to  the 
payee  thereof,  who  afterwards,  on  the  same  day,  [assigned  and] 
endorsed  in  writing,  and  delivered  the  same  to  the  plaintiffs,  who 
ever  since  have  been,  and  still  are,  the  holders,  and  entitled  to  the 
payment  thereof. 

3.  That  the  said  note  is  due  and  payable,  and  payment  thereof  was 
demanded  on  the  day  the  same  became  due,  and  often  thereafter,  but 
to  pay  the  same  or  any  part  thereof  the  defendants  have  hitherto 
refused,  and  still  do  refuse. 

[Concluding  part.] 

FORM    No.  748 — By  partners  on  protested  promissory  note. 

(In  Hartzell  v.  McClurg,  54  Neb.  316;  74  N.  W.  626.) 
[Title  of  court  and  cause.] 
The  plaintiffs  complain  of  the  defendant,  and  allege : 

1.  That  plaintiffs  are  partners,  and  doing  business  under  the  firm 
name  of  ;  that  on  ,  19  ,  and  for  a  valuable  considera- 
tion, ,  defendant,  executed  and  delivered  to  plaintiffs  his  prom- 
issory note  in  writing,  wherein  and  whereby  he,  defendant,  promised 
to  pay  to  plaintiffs'  order  the  sum  of  $  ,  on  ,  19  ,  with 
interest  thereon  from  date  until  paid. 

2.  That  afterwards,  to  wit,  on  the  day  of  ,  19  ,  the 
plaintiffs,  for  a  valuable  consideration,  sold  and  discounted  said  note; 
that  at  the  maturity  thereof  the  owners,  in  the  usual  course  of  busi- 
ness, caused  said  note  to  be  presented  at  the  National  Bank, 
the  place  of  presentation  thereof  for  payment,  and  payment  thereof 
was  then  and  there  by  defendant  refused;  that  said  note  was,  by 
reason  of  the  neglect  and  refusal  of  the  defendant  to  pay  the  same, 
thereafter  duly  protested,  at  the  cost  of  $  for  protest  fees ;  that 
said  note  is  wholly  due  and  payable,  and  defendant  wholly  neglects 
to  pay  the  same,  or  any  part  thereof. 

Wherefore,  plaintiffs  pray  judgment  against  defendant  [etc. ;  in- 
cluding in  the  demand,  besides  the  principal  sum,  protest  fees  and 
costs].  [Signatures,  etc.] 

Jury's   PL— 87. 


1366  NEGOTIABLE  INSTRUMENTS.  [Tit.  XIL 

FORM   No.  749 — On  note  signed  by  agent. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
by  his  agent  [or  his  attorney  in  fact],  duly  authorized,  made  hi» 
promissory  note,  and  thereby  promised  to  pay  to  the  plaintiff  [or  his 
order]  $            ,             months  after  said  date. 

2.  [Same  as  paragraph  3,  form  No.  735.] 
Wherefore,  the  plaintiff  prays  judgment  [etc.]. 

FORM   No.  750 — Action  upon  a  promissory  note  executed   by  an  agent  of  a 
partnership. 

(In  Redemeyer  v.  Henley,  107  Cal.  175;  40  Pac.  230.)  l 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendants,  and  for  cause  of  action  alleges : 

1.  That  the  defendants,  Whitcombe  Henley,  Barclay  Henley,  and 
Thomas  B.  Henley,  are  now,  and  at  all  times  herein  named  have  been, 
partners  doing  business  in  the  county  of  Mendocino,  state  of  Califor- 
nia, uiider  the  firm  name  and  style  of  W.  Henley  &  Bros. 

2.  That  on  the  15th  day  of  April,  1893,  the  defendants,  by  their 
agent,  W.  Henley,  thereunto  duly  authorized,  made  and  executed 
their  certain  promissory  note  in  writing,  of  which  the  following  is  & 
copy,  to  wit:  [Here  follows  copy],  and  then  and  there  delivered  the 
same  to  plaintiff,  who  is  now  the  lawful  owner  and  holder  thereof. 

3.  That  the  said  promissory  note  has  not  been  paid,  nor  any  part 
thereof,  nor  any  part  of  the  interest  thereon,  but  the  whole  amount 
thereof,  to  wit,  the  sum  of  $1,601.60,  with  interest  thereon  from  the 
15th  day  of  April,  1893,  at  the  rate  of  ten  per  cent  per  annum,  still 
remains  due  and  owing  to  this  plaintiff  from  defendants. 

[Concluding  part.] 

l  The  substance  of  an  objection  made  to  this  complaint  (corrected  in  this  form) 
was  that  it  did  not  show  authority  to  make  the  note,  because  such  authority  was  not 
expressly  alleged  nor  implied  in  any  of  the  express  allegations.  The  court,  how* 
ever,  held  that  such  authority  is  sufficiently  implied  in  the  express  allegation  that 
"defendants,  Whitcombe  Henley,  Barclay  Henley,  and  Thomas  B.  Henley,  partners 
doing  business  under  the  firm  name  of  W.  Henley  &  Bros.,  by  their  agent,  W. 
Henley,  made  and  executed"  the  note.  The  truth  of  this  allegation  is  admitted  by 
a  default:    Redemeyer  v.  Henley,  107  Cal.  175,  177,  40  Pac.  230. 


Ch.XCVIL]         COMPLAINTS  [OR  PETITIONS].— FORMS.  1367 

FORM  No.  751 — Upon  a  joint  and  several  promissory  note. 

(In  Rhodes  v.  Hutchins,  10  Colo.  258;  15  Pac.  329.) 

[Title  of  court  and  cause.] 
[After  introductory  part:] 

1.  That  the  defendants  are  indebted  to  the  plaintiffs  on  a  certain 
promissory  note  payable  to  the  plaintiff  or  order,  of  which  the  fol- 
lowing is  a  copy:  [Copy  of  note  inserted]  ;  that  there  are  no  credits 
or  endorsements  thereon. 

2.  That  there  is  due  and  owing  the  plaintiff  from  defendants  on 
said  note  the  sum  of  $1,050,  and  interest  thereon  from  December  3, 
1881. 

3.  That  defendants  have  not,  nor  has  either  of  them,  ever  paid  the 
sum  of  money  above  mentioned,  or  any  part  thereof. 

[Concluding  part.] 

FORM   No.  752 — On  note  executed  in  another  state. 

(In  Minneapolis  Harvester  Works  v.  Smith,  36  Neb.  616;  51  N.  W. 

973.) 

[Title  of  court  and  cause,  etc.] 

Now  comes  the  plaintiff  in  the  above-entitled  cause  and  complains 
of  the  defendant,  and  alleges : 

1.  That  plaintiff  was  on  the  day  of  ,  19  ,  and  still  is, 
a  corporation  duly  organized  under  the  laws  of  Minnesota. 

2.  That  the  defendant  on  the  day  of  ,  19  ,  made  his 
certain  promissory  note  at  ,  Minnesota,  and  delivered  the  same 
to  the  plaintiff.  Said  note  is  hereto  attached,  marked  "Exhibit  A," 
and  made  a  part  of  this  petition. 

3.  That  by  the  laws  of  ,  the  statute  provides  that  an  action 
of  debt  on  a  promissory  note  may  be  commenced  within  ten  years 
from  the  time  the  cause  of  action  accrues. 

4.  That  the  defendant  had  resided  in  the  state  of  since  the 
giving  of  said  note,  and  prior  to  the  commencement  of  this  action, 
for  the  space  of  three  years. 

5.  That  said  note  has  not  been  paid,  nor  any  part  thereof,  and 
there  is  now  due  and  payable  thereon  the  sum  of  $  ,  with 
interest  at  the  rate  of  per  cent  per  annum  from  the  day 
of            ,  19     . 

[Concluding  part.] 

[Copy  of  note  attached  as  exhibit.] 


1368  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

FORM   No.  753 — By  payee  of  bill  against  acceptor  for  non-payment. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
made  and  executed  to  the  plaintiff  his  certain  bill  of  exchange,  in 
writing,  of  that  date,  a  copy  of  which  is  here  set  forth:  [Copy  of 
bill] 

2.  That  thereafter,  to  wit,  on  the  day  of  ,  19  ,  the 
defendant  accepted  said  bill. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  754 — By  payee  of  bill  against  drawer  after  non-acceptance. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  [Allegation  of  execution  of  bill,  as  in  form  No.  753.] 

2.  That  said  bill  was  duly  presented  to  the  said  [drawee] 
for  acceptance,  but  was  not  accepted,  and  that  due  notice  thereof  was 
given  to  the  defendant. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  755 — For  non-payment  of  bill  payable  on  specific  date. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That,  on  the  day  of  ,  19  ,  at  ,  the  defendant 
made  and  delivered  to  the  plaintiff  his  bill  of  exchange  in  writing  of 
that  date,  directed  to  one  C.  D.,  and  thereby  required  the  said  C.  D. 
to  pay  to  the  order  of  the  plaintiff  $  ,  on  the  day  of  , 
19     ,  for  value  received. 

2.  That  said  bill  was  duly  presented  to  the  said  C.  D.  for  payment, 
but  was  not  accepted  or  paid,  and  that  due  notice  thereof  was  given 
to  the  defendant. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 


Ch.  XCVIL]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1369 

FORM   No.  756 — By  assignee  of  bill  payable  out  of  particular  fund. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  C.  D.  made, 
executed,  and  delivered  to  one  E.  F.,  his  bill  of  exchange  or  order,  in 
writing,  of  that  date,  and  directed  the  same  to  the  defendant,  and 
thereby  required  the  defendant  to  pay  to  said  E.  F.,  out  of  the  pro- 
ceeds of  [state  fund  as  in  the  bill],  $  ,  days  after  the  date 
thereof,  for  value  received. 

2.  That  on  the  day  of  ,  19  ,  at  ,  upon  sight 
thereof,  the  defendant  accepted  the  same,  payable  when  in  funds, 
from  the  proceeds  of  [etc.,  as  in  acceptance]. 

3.  That  on  the  day  of  ,  19  ,  at  ,  said  E.  F.  duly 
assigned  said  bill  to  the  plaintiff,  and  that  the  plaintiff  is  now  the 
owner  and  holder  thereof. 

4.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
had  funds  of  the  said  C.  D.,  proceeds  of  [etc.,  as  stipulated  in  accept- 
ance]. 

5.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
duly  demanded  payment  thereof  from  the  defendant. 

6.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  757 — By  payee  against  drawee  and  acceptor. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
Y.  Z.  made  and  delivered  to  the  plaintiff  his  bill  of  exchange  in  writ- 
ing of  that  date,  and  directed  it  to  the  defendant  W.  X.  [acceptor], 
and  thereby  required  the  said  W.  X.  to  pay  to  the  plaintiff  $  , 

days  after  the  date  thereof  [or  otherwise,  as  the  case  may  be], 
for  value  received. 

2.  That  on  the  day  of  ,  19  ,  the  defendant  W.  X., 
upon  sight  thereof,  accepted  the  said  bill.  [Copy  of  bill  and  accept- 
ance.] 

3.  That  the  same  was  duly  presented  to  the  defendant  W.  X.  for 
payment  at  maturity,  but  was  not  paid,  notice  of  which  was  duly 
given  to  the  defendant  Y.  Z. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 


DJ70  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

FORM    No.  758 — By  payee,  on  bill  accepted  for  honor. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  defendant  C.  D. 
[drawer]  made  and  delivered  to  the  plaintiff  his  bill  of  exchange  in 
writing,  of  that  date,  directed  to  one  E.  F.,  and  thereby  required  the 
said  E.  F.  to  pay  to  the  plaintiff  $  ,  days  after  the  date 
thereof  [or  otherwise,  as  the  case  may  be].  [Insert  copy  of  bill  and 
acceptances.] 

2.  That  on  the  day  of  ,  19  ,  it  was  duly  presented  to 
the  said  E.  F.  for  acceptance,  but  was  not  accepted,  and  notice  there- 
of was  given  to  the  defendant  C.  D. 

3.  That  on  the  day  of  ,19  ,  at  ,  the  defendant 
G.  H.  [acceptor  for  honor],  upon  sight  thereof,  accepted  said  bill  for 
the  honor  of  said  C.  D. 

4.  That  the  same  was  duly  presented  for  payment,  at  maturity,  to 
the  said  E.  F.,  but  was  not  paid,  notice  of  which  was  given  to  the 
defendant  C.  D. 

5.  That  thereupon  the  same  was  duly  presented  to  the  defendant 
G.  H.  [acceptor  for  honor],  for  payment,  but  was  not  paid,  notice  of 
which  was  given  to  the  defendant  C.  D. 

6.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  759 — By  first  endorsee  of  bill  against  acceptor. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  C.  D.  made 
his  bill  of  exchange  in  writing  of  that  date,  and  thereby  required  the 
defendant  to  pay  to  the  order  of  one  E.  F.,  $  ,  days  after 
sight  thereof,  a  copy  of  which  is  here  set  forth :    [Insert  copy.] 

2.  That  on  the  day  of  ,  19  ,  the  defendant  accepted 
said  bill,  and  thereafter  the  said  E.  F.  endorsed  the  same  to  the 
plaintiff. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 


Ch.  XCVIL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1371 

FORM   No.  760 — By  endorsee  of  bill  against  first  endorser. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  C.  D.  made 
his  bill  of  exchange  in  writing  of  that  date,  and  thereby  required  one 
E.  F.  to  pay  to  the  order  of  the  defendant  $  ,  after  sight 
thereof. 

2.  That  the  defendant  endorsed  the  said  bill  to  the  plaintiff,  and 
the  same  was  accepted  by  the  said  E.  F.  on  the  day  of  , 
19     ,  at             .    [Insert  copy  of  bill,  endorsement,  and  acceptance.] 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  same  was 
duly  presented  to  for  payment,  but  was  not  paid,  of  all  which 
due  notice  was  given  to  the  defendant. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  761 — By  remote  endorsee  against  drawer  and  endorser  for  non- 
acceptance. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
[drawer],  by  his  bill  of  exchange,  in  writing,  of  that  date,  required 
one  C.  D.  to  pay  to  the  order  of  one  E.  F.  $  ,  days  after 
the  date  thereof  [or  as  the  case  may  be]. 

2.  That  the  said  G.  H.  [drawer]  then  and  there  delivered  the  same 
to  the  said  E.  F.,  who  then  and  there  endorsed  it  to  the  defendant 
L.  M. 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
L.  M.  endorsed  the  same  to  the  plaintiff  for  value.  The  following  is  a 
copy  of  said  bill  and  the  endorsements  thereon:    [Copy.] 

4.  That  the  said  bill  was  duly  presented  to  C.  D.  [drawee]  for 
acceptance,  but  was  not  accepted,  due  notice  of  which  was  given  to 
the  defendants. 

5.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 


1372  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

FORM   No.  762 — By  subsequent  endorsee  of  bill  against  first  endorser. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  C.  D.  made 
his  bill  of  exchange  in  writing,  of  that  date,  requiring  one  G.  H.  to 
pay  to  the  order  of  the  defendant  $  ,  days  after  sight 
thereof  [or  as  the  case  may  be]. 

2.  That  the  defendant  endorsed  said  bill  to  one  E.  F.,  and  the  same 
was  accepted  by  G.  H.  on  the  day  of  ,  19     ,  at 

3.  That  the  same  was  by  the  endorsement  of  E.  F.  transferred  to 
the  plaintiff,  and  on  the  day  of  ,  19  ,  at  ,  was  pre- 
sented to  the  said  G.  H.  for  payment,  but  was  not  paid,  due  notice  of 
which  was  given  to  the  defendant. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  763 — By    subsequent    endorsee    of    bill    against    intermediate    en- 
dorser. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  C.  D.  made 
his  bill  of  exchange,  in  writing,  of  that  date,  and  thereby  required 
one  E.  F.  to  pay  to  the  order  of  G.  H.  $  ,  days  after  sight 
thereof  [or  as  the  case  may  be]. 

2.  The  said  bill  was  endorsed  by  the  said  G.  H.  to  the  defendant, 
and  by  the  endorsement  of  the  defendant  [and  others],  the  same 
was  transferred  to  the  plaintiff. 

3.  [Allegation  of  presentment,  non-payment,  and  notice,  as  in  pre- 
ceding form.] 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  764 — By  subsequent  endorsee  of  bill  against  last  endorser. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  on  the  day  of  ,  19     ,  at  ,  one  C.  D.  made 

his  bill  of  exchange,  in  writing,  of  that  date,  and  thereby  required 
one  E.  F.  to  pay  to  the  order  of  G.  H.  $  ,  days  after  sight 

thereof  [or  as  the  case  may  be]. 


Ch.  XCVII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1373 

2.  That  the  said  bill  was  endorsed  by  said  G.  H.  to  the  defendant, 
and  the  same  was  endorsed  by  the  defendant  to  this  plaintiff. 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  same  was 
duly  presented  to  the  said  E.  F.  for  payment,  but  was  not  paid,  due 
notice  of  which  was  given  to  the  defendant. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  765 — By  first  endorsee  of  bill  against  all  prior  parties. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
C.  D.  made  his  bill  of  exchange,  in  writing,  of  that  date,  and  thereby 
requested  E.  F.  to  pay  to  the  order  of  the  defendant  G.  H.  $  , 

days  after  the  date  thereof. 

2.  That  the  said  C.  D.  then  and  there  [or  thereafter]  delivered  the 
same  to  the  said  G.  H.,  who  thereupon  endorsed  it  to  the  defendant 
L.  M.,  who  endorsed  it  to  the  plaintiff  for  value  on  the  day 
of            ,  19     . 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
E.  F.  accepted  said  bill  upon  sight. 

4.  That  the  same  was  duly  presented  to  the  defendant  E.  F.  for 
payment  at  maturity,  but  was  not  paid,  of  which  due  notice  was 
given  to  the  defendants  C.  D.,  G.  H.,  and  L.  M. 

5.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  766 — By  subsequent  endorsee  against  all  prior  parties. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
C.  D.  made  his  bill  of  exchange,  in  writing,  of  that  date,  and  thereby 
required  the  defendant  E.  F.  to  pay  to  the  order  of  the  defendant 
G.  H.  $            .            days  after  sight  thereof. 

2.  That  on  the  day  of  ,  19  ,  the  same  was  accepted  by 
the  said  E.  F.,  and  endorsed  by  the  said  G.  H.  to  the  plaintiff. 

3.  That  on  the  day  of  ,  19  ,  the  same  was  duly  pre- 
sented to  the  said  E.  F.  for  payment,  but  was  not  paid,  of  which  due 
notice  was  given  to  the  other  defendants,  and  to  each  of  them. 


1374  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

4.   [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  767— Action  against  a  bank  upon  acceptance,  followed  by  refusal 
to  pay  check. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  [Aver  incorporation  of  defendant.] 

2.  That  on  the  day  of  ,  19  ,  one  made  his  check, 
in  writing,  bearing  date  on  that  day,  and  directed  it  to  the  defend- 
ant, and  delivered  the  same  to  this  plaintiff  for  value,  which  check 
was  in  the  words  and  figures  following,  to  wit:    [Insert  copy.] 

3.  That  thereafter,  and  on  the  day  of  ,  19  ,  the  de- 
fendant, in  writing,  accepted  said  check  and  promised  to  pay  the 
same. 

4.  That  thereafter,  on  the  day  of  ,  19  ,  plaintiff  pre- 
sented said  check  to  the  defendant  at  its  said  place  of  business  for 
payment;  that  said  bank  then  refused,  and  ever  since  has  refused, 
to  pay  the  same,  or  any  part  thereof,  and  the  same  is  wholly  due, 
payable,  and  unpaid  from  defendant  to  plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  the  defendant  for  the 
sum  of  $  ,  the  amount  of  said  check,  and  interest  thereon  from 

the  day  of  ,  19     ,  and  for  plaintiff's  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  768 — Action  upon  an  accepted  and  assigned  draft. 

(In  Fisher  v.  Frank,  8  Cal.  App.  472;  97  Pac.  95.) 

[Title  of  court  and  cause.] 

Now  comes  the  plaintiff  above  named  and  complains  of  defendant, 
and  for  cause  of  action  alleges : 

1.  That  heretofore,  to  wit,  on  the  16th  day  of  September,  1904, 
defendant,  George  Frank,  doing  business  as  George  Frank  &  Co., 
for  value,  accepted  at  San  Jose,  Santa  Clara  County,  state  of  Califor- 
nia, a  draft  in  favor  of  W.  C.  Kennedy  for  $2,538.12,  which  said  draft 
and  the  acceptance  thereof  and  endorsements  thereon  are  as  follows, 
to  wit:  [Here  follows  copy  of  draft  with  endorsements  of  partial 
payments,  acceptances,  etc.] 


<Jh.  XCV1I.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1375 

2.  That  said  draft  was,  for  value,  after  acceptance  thereof  by 
defendant,  duly  assigned  to  Fiacro  Fisher,  the  plaintiff  herein,  who 
ever  since  has  been,  and  now  is,  the  owner  and  holder  thereof. 

3.  That  there  has  been  paid  by  defendant  upon  said  draft  after 
acceptance  the  sum  of  $1,100 ;  that  no  other  or  further  sum  has  been 
paid  thereon ;  that  thereafter,  and  before  the  commencement  of  this 
suit,  plaintiff  duly  demanded  of  defendant  the  balance  due,  to  wit, 
the  sum  of  $1,438.12,  but  to  pay  the  same  or  any  part  thereof  the 
defendant  then  and  there  and  ever  since  has  refused;  that  there  is 
now  due,  owing,  payable,  and  unpaid  from  defendant  to  plaintiff  the 
sum  of  $1,438.12,  in  United  States  gold  coin,  together  with  interest 
thereon  at  seven  per  cent  per  annum  from  the  16th  day  of  September, 
1904,  to  wit,  $113.32,— in  all,  $1,551.44,  in  United  States  gold  coin. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  said 
sum  of  $1,551.44,  in  United  States  gold  coin,  together  with  his  costs 
herein  expended.  W.  C.  Kennedy, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  769 — By  payee  of  check  against  drawer. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
made  and  delivered  to  the  plaintiff  his  check,  in  writing,  of  that 
date,  and  directed  the  same  to  the  bank  of  C.  D.,  requiring  said  bank 
to  pay  to  the  plaintiff  or  order  [or  bearer]  $  ,  said  check  being 
in  the  words  and  figures  as  follows:    [Copy.] 

2.  That  said  check  was  duly  presented  on  the  day  of  , 
19  ,  to  the  said  [drawee]  for  payment,  but  was  not  paid,  due  notice 
of  which  was  given  to  the  defendant  [drawer]. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  770 — By  endorsee  or  bearer  of  check  against  drawer. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 
1.  That  on  the  day  of  ,  19     ,  at  ,  the  defendant 

made  his  check,  in  writing,  of  that  date,  and  directed  the  same  to  the 
Bank  of  ,  thereby  requiring  said  bank  to  pay  to  one  L.  M.  or 

order  [or  bearer]  $ 


1376  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

2.  That  the  defendant  then  and  there  endorsed  the  same  to  this 
plaintiff. 

3.  That  thereafter  [or  on  the  day  of  ,  19  ,]  the  same 
was  duly  presented  to  said  bank  for  payment,  but  was  not  paid,  due 
notice  of  which  was  given  to  the  defendant. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  771 — By   endorsee   or   bearer   of  check    against   drawer   and   en- 
dorser. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
Y.  Z.  made  his  check  in  writing  of  that  date,  and  directed  it  to  the 
bank  of  C.  D.,  thereby,  requiring  the  said  C.  D.  to  pay  to  the  defend- 
ant W.  X.  or  order  [or  bearer]  $  ,  and  delivered  it  to  the 
defendant  W.  X. 

2.  That  thereupon  the  said  W.  X.  endorsed  the  same  to  this  plaint- 
iff for  value. 

3.  That  the  said  check  was  duly  presented  for  payment,  but  pay- 
ment thereof  was  refused,  due  notice  of  which  was  given  to  the 
defendants. 

4.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

FORM   No.  772 — Omission  to  give  notice  excused. 

[Title  of  court  and  cause.] 

1.  [As  in  preceding  form.] 

2.  That  thereafter  [or  on  the  day  of  ,  19  ,]  the  same 
was  duly  presented  to  said  [drawee]  for  payment,  but  the  defendant 
had  no  funds  with  said  drawee. 

3.  [Same  as  paragraph  3,  form  No.  735.] 
[Concluding  part.] 

§345.  ANSWERS. 

FORM   No.  773 — Defense  of  payment  before  endorsement. 

[Title  of  court  and  cause.] 

Defendant  answering  plaintiff's  complaint  [or  petition],  alleges r 

1.  That  after  the  bill  mentioned  therein  was  due,  and  while  the  said 

[drawer]  was  the  holder  thereof,  and  before  this  action  was  brought,. 


€h.XCVII.]  ANSWERS.— FORMS.  1377 

the  defendant  satisfied  and  discharged  the  principal  and  interest  [and 
damages]  due  on  said  bill,  by  payment  to  the  said  [drawer]. 

2.  That  after  said  payment,  and  not  before,  said  [drawer]  endorsed 
said  bill  to  the  plaintiff. 

[Etc.] 

FORM   No.  774 — Defense  of  no  consideration. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition], 
and  alleges: 

1.  That  the  note  mentioned  therein  was  given  by  the  defendant 
solely  for  and  on  account  of  certain  goods  [here  describe],  sold  and 
delivered  to  the  defendant  by  the  plaintiff,  and  without  any  other 
consideration  therefor. 

2.  That  the  plaintiff  was  not  the  owner  of  said  goods  so  sold  and 
delivered  to  the  defendant,  but  the  same  were  the  property  of  one 
C.  D.,  who,  on  the  day  of  ,  19  ,  recovered  said  property 
from  the  defendant  in  an  action  of  replevin ;  that  the  defendant  has 
received  no  consideration  for  said  note. 

[Etc.] 

FORM   No.  775 — Defenses  of  want  of  consideration  and  fraud. 

(In  Fifth  National  Bank  v.  Edholm,  25  Neb.  741,  742;  41  N.  W.  776.) 

[Title  of  court  and  cause.] 

[Introductory  part.] 

1.  Defendants  admit  that   they  made  and  delivered  to  of 

,  their  certain  promissory  note,  but  deny  that  the  plaintiff  in 
due  course  of  business,  or  for  a  valuable  consideration,  and  before 
maturity,  purchased  the  said  note. 

2.  Defendants  allege  the  fact  to  be  that  said  note  was  made,  exe- 
cuted, and  delivered  under  the  following  circumstances :  That  on  , 
19  ,  they,  the  defendants,  had  made,  executed,  and  delivered  their 
certain  promissory  note  in  the  sum  of  $  to  ,  of  , 
payable  in  days  thereafter;  that  before  said  note  became  due 
defendants  applied  for  and  obtained  permission  to  renew  the  same, 
with  instructions  to  pay,  when  presented  at  the  bank  of  the  city  of 

,  the  amount  due,  and  to  draw  a  sight  draft  upon  the  said 
in  a  like  sum,  at  the  same  time  sending  the  new  note,  with  interest 
added ;  that  defendants  paid  said  first-mentioned  note  when  pre- 


]:J78  NEGOTIABLE  INSTRUMENTS.  [Tit.  XIL 

sen  ted  as  aforesaid,  and  drew  their  draft  as  agreed,  which  draft  was. 
dishonored,  and  has  never  been  paid;  that  defendants  have  not 
received  any  consideration  for  the  note  sued  upon  in  this  action,  and 
that  the  same  was  obtained  by  fraud  and  undue  means  [here,  ordi- 
narily, the  circumstances  of  such  fraud  and  undue  influence  should  be 
set  forth]  ;  that  said  note  appears  to  have  been  endorsed  over  by 
said  and  ,  of  ,  who  have  made  a  pretended  trans- 

fer to  this  plaintiff  for  the  sole  and  only  purpose,  as  defendants  [are 
informed  and]  believe  [and  upon  such  information  and  belief  aver], 
of  suing  upon  the  same  for  the  benefit  of  said 
[Etc.] 

FORM   No.  776 — Defense  of  no  consideration   based  upon  false  warranty  of 
goods  sold. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

1.  That  the  note  mentioned  therein  was  given  by  the  defendant 
solely  for  and  on  account  of  certain  goods  called  ,  sold  and  de- 
livered to  the  defendant  by  the  plaintiff,  and  without  any  other  con- 
sideration therefor. 

2.  That  said  goods  were  purchased  by  the  defendant,  as  the  plaint- 
iff then  well  knew,  for  the  purpose  of  [here  state],  and  the  plaintiff, 
as  part  of  the  contract  of  sale  and  consideration  of  said  note,  war- 
ranted and  represented  that  said  goods  were  fit  and  proper  and  suit- 
able for  such  purpose. 

3.  That  the  defendant  accepted  and  purchased  said  goods  for  the 
purpose  of  [here  state],  trusting  in  the  said  representations  and  war- 
ranty of  the  plaintiff,  as  the  plaintiff  well  knew. 

4.  That  the  said  goods  were  not  fit  or  proper  for  said  purpose, 
the  same  being  [state  defect],  and  have  always  been,  and  are  alto- 
gether, useless  to  the  defendant. 

5.  That  as  soon  as  the  defendant  discovered  the  defective  character 
of  said  goods  for  the  purpose  aforesaid,  he  notified  the  plaintiff 
thereof,  and  offered  to  return  them,  and  this  the  defendant  is  still 
ready  and  willing  to  do. 

[Concluding  part.] 


Cta.  XCVII.]  ANSWERS.— FORMS.  1379 

FORM  No.  777 — Defense  that  note  was  executed  for  a  pre-existing  indebted- 
ness, and  endorsed  by  an  officer  of  a  corporation  without 
consideration. 

(In  Lovejoy  v.  Citizens'  Bank,  23  Kan.  331.) 

[Title  of  court  and  cause.] 

Defendant  admits  the  execution  by  defendants  of  the  note  on  which 
the  plaintiff  sues,  and  the  endorsement  by  this  defendant  of  his  name 
on  the  back  thereof,  but  he  says  said  note  was  not  executed  to  this 
defendant,  but  to  the  plaintiff  in  the  name  of  this  defendant,  as  [an 
officer,  to  wit,  the]  president  of  the  plaintiff,  and  was  so  executed 
because  it  was  customary  for  plaintiff  to  take  notes  of  its  debtors  in 
the  name  of  one  of  its  officers  as  payee ;  that  it  was  executed  in  con- 
sideration of  a  pre-existing  and  overdue  indebtedness  of  the  defend- 
ants and  to  the  plaintiff,  and  not  for  the  purpose  of  pro- 
curing credit  for  this  defendant,  nor  for  this  defendant  [in  any 
respect  whatsoever],  nor  for  any  consideration  other  than  said 
pre-existing  and  overdue  indebtedness ;  that  afterwards,  without  any 
consideration  or  benefit  whatever  moving  between  the  plaintiff  and 
the  defendants,  or  between  the  plaintiff  and  any  one  else,  but  merely 
in  accordance  with  the  custom  of  the  plaintiff,  this  defendant,  as 
president  of  the  plaintiff,  and  not  otherwise,  endorsed  his  name  on 
the  back  of  said  note ;  that  at  no  time  was  this  defendant  the  owner 
and  holder  of  said  note,  nor  was  any  other  person  than  plaintiff 
the  owner  and  holder  thereof  at  any  time,  and  the  said  endorsement 
of  said  note  by  this  defendant  was  wholly  without  consideration. 

[Concluding  part.] 

FORM   No.  778 — Defense  of  fraud  in  procuring  note. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition] , 
and  alleges : 

1.  That  the  note  mentioned  therein  was  procured  by  the  plaintiff 
from  this  defendant  by  fraud  and  false  representations  [setting  out 
what  they  were]. 

2.  That  the  said  representations  were  then  known  by  the  plaintiff 
to  be  false,  and  were  made  by  him  with  intent  to  deceive  and  defraud 
this  defendant. 


1380  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

3.  That  the  defendant  relied  upon  the  same,  and,  believing  them  to 
be  true,  executed  said  note;  that  defendant  received  no  consideration 
therefor. 

[Etc.] 

FORM   No.  779 — Defense  of  mistake  in  amount  of  note. 

[Title  of  court  and  cause.] 

That  said  note  was  given  upon  a  settlement  of  account  between 
the  defendant  and  the  plaintiff,  and  was  intended  by  them  to  be 
made  and  received  for  the  sum  of  $  ,  then  claimed  by  the  plaint- 

iff to  be  the  amount  due  him  from  the  defendant ;  but  that  when  said 
note  was  made  it  was,  by  mistake  of  the  parties,  given  for  the  sum  of 
$  ,  mentioned  in  the  complaint,  instead  of  the  sum  of  $  , 

which  was  all  that  was  due ;  and  as  to  the  excess,  to  wit,  $  ,  the 

same  is  without  consideration. 

[Concluding  part.] 

FORM   No.  780 — Defense  that  acceptance  was  for  accommodation. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  complaint  [or  petition]  of  the  plaint- 
iff, alleges: 

That  the  bill  mentioned  therein  was  accepted  by  this  defendant 
solely  for  the  accommodation  of  the  plaintiff,  and  that  there  never 
was  any  value  or  consideration  for  the  acceptance  or  payment  of  said 
bill  by  the  defendant. 

[Etc.] 

FORM   No.  781 — Defense  that  defendant  was  a  married  woman,  and  signed 
the  note  as  surety  only  for  her  husband. 

(From  Emerson  Co.  v.  Knapp,  90  Wis.  34;  52  N.  W.  945.) 

[Title  of  court  and  cause.] 

That  at  the  time  this  defendant  executed  the  note  described  in  the 
complaint  herein,  she  was,  and  still  is,  a  married  woman,  and  the 
wife  of  J.  K.,  and  that  the  said  J.  K.  executed  said  note  as  principal 
maker  in  payment  of  a  debt  then  owing  by  him  individually  to  the 
plaintiff,  and  for  no  other  consideration,  and  that  this  defendant 
thereupon  signed  said  note  at  the  request  of,  and  as  surety  for,  her 


Ch.  XCVII.J  ANSWERS.— FORMS.  1381 

said  husband,  and  not  otherwise,  and  this  defendant  received  no  con- 
sideration for  said  note,  nor  did  the  same  in  any  way  concern  her 
separate  property  or  business. 
[Concluding  part.] 

FORM   No.  782 — Defense  of  unauthorized  and  fraudulent  acceptance. 

[Title  of  court  and  cause.] 

The  defendants,  for  answer  to  the  complaint  [or  petition]  of  the 
plaintiff  herein,  allege: 

That  the  bill  mentioned  therein  was  made  without  the  authority  or 
consent  of  these  defendants,  out  of  the  course  of  their  regular  busi- 
ness, and  without  consideration  to  them,  accepted  in  their  name  by 
one  C.  D.,  fraudulently  pretending  to  act  under  their  authority,  but 
in  fact  having  no  authority  to  accept  the  same. 

[Etc.] 

FORM   No.  783 — Defense  of  alteration  of  instrument.    (In  general.) 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition], 
and  alleges: 

That  after  the  making  and  issue  of  said  note,  and  before  this 
action,  the  same  was  altered  in  a  material  part  without  the  knowledge 
or  consent  of  this  defendant  by  [here  state  the  alteration  made]. 

[Etc.] 

FORM   No.  784 — Defense  based  upon  material  alteration  in  note  by  changing 
the  name  of  the  payor. 

(In  Horn  v.  Newton  City  Bank,  32  Kan.  518;  4  Pac.  1022.) 

[Title  of  court  and  cause.] 

The  defendants  say  that  the  note  sued  on  in  this  action  was  orig- 
inally executed  by  them  to  X.  Y.,  but  that  since  its  said  execution  the 
same  has  been  altered  and  so  changed  as  to  make  it  payable  to  Y.  Z. ; 
that  said  change  was  made  without  the  knowledge  or  consent  of 
these  defendants,  and  is  in  fraud  of  their  rights,  and  was  so  changed 
and  assigned  to  the  plaintiff  for  the  purpose  of  preventing  them  from 
pleading  thereto  a  failure  of  consideration  and  other  equitable  de- 
fenses existing  against  said  note  in  favor  of  these  defendants;  that 
by  reason  of  said  change,  which  is  material  and  fraudulent  upon  the 
rights  of  these  defendants,  said  note  has  become  absolutely  void, 

[Etc-] 

Jury's  PI.— 88. 


1382  NEGOTIABLE  INSTRUMENTS.  [Tit.  Xli. 

FORM   No.  785 — Defense  that  note  was  given  for  losses  sustained  by  sale  of 
"options  on  'change,"  a  fictitious  and  gambling  transaction* 

(In  Sprague  v.  Warren,  26  Neb.  326;  41  N.  W.  1113;  3  L.  R.  A.  679.) 
[Title  of  court  and  cause.] 
[After  introductory  part:] 

1.  That  heretofore,  on  the  day  of  ,  19  ,  plaintiffs  were 
commission  merchants  in 

2.  That  plaintiffs  at  said  time,  under  the  firm  name  of  ,  dealt 
and  traded  in  what  are  known  as  "options  on  'change"  in  , 
grain,  by  selling  and  buying  in  market,  on  'change,  certain  grain 
for  future  delivery,  when,  in  fact,  no  delivery  was  ever  intended  or 
demanded,  and  no  grain  was  bought  or  sold  or  intended  to  be. 

3.  That  on  said  day  defendant  took  an  "option"  of  said  plaintiffs 
on  grain  as  aforesaid,  for  future  delivery,  when,  in  fact,  no  delivery 
was  ever  intended  or  demanded,  and  no  grain  was  bought  or  sold  or 
intended  to  be. 

4.  That  the  whole  transaction  was  a  venture  and  speculation  on 
margins,  depending  for  profit  or  loss  on  the  fluctuations  of  the  mar- 
ket, and  was  wholly  a  fictitious  and  gambling  transaction. 

5.  That  in  such  transaction  no  consideration  was  received. 

6.  That  the  said  note  sued  upon  herein  was  given  for  losses  in  so- 
trading  in  said  "options"  at  said  time  as  aforesaid,  and  is  without 
consideration  and  wholly  void,  which  plaintiffs  well  knew,  and  in 
violation  of  the  law  and  contrary  to  public  policy. 

[Concluding  part.] 

FORM    No.  786 — Defense  of  usury  in  making  note. 

[Title  of  court  and  cause.] 
[After  introductory  part:] 

1.  That  defendant  gave  to  the  plaintiff  the  note  mentioned  in  said' 
complaint  in  pursuance  of  an  agreement  between  the  plaintiff  and 
defendant  that  the  plaintiff  should  lend  the  defendant  the  sura  of 
$  ,  from  the  day  of  ,  19     ,  until  the  day  of 

,  19     ,  upon  interest  at  the  rate  of  per  cent  per  annum. 

2.  That  the  defendant  received  from  the  plaintiff  $  only  as 
consideration  for  the  said  note,  the  plaintiff  retaining  $  as  inter- 
est thereon.  [Or  allege  the  facts  showing  any  other  manner  bj* 
which  usury  was  exacted.] 

[Concluding  part.] 


Ch.  XCVIL]  ANSWERS— FORMS.  1383 

FORM  No.  787 — Defenses — (1)  denials,  (2)  dishonoring  of  drafts  due  to  acts 
of  plaintiff,  (3)  that  value  of  property  was  offset  by  value 
of  drafts,  (4)  payment,  (5)  wrongful  diversion  of  surplus 
money  which  should  have  been  applied  to  payment,  (6) 
non-observance  of  instructions  and  failure  to  enforce  lien, 
(7)  failure  to  deliver  agreed  security. — Action  upon  guar- 
anty of  drafts  with  bills  of  lading  attached. 

(In  First  National  Bank  v.  Bowers,  153  Cal.  95;  91  Pac.  422.) 
[Title  of  court  and  cause.] 

Now  comes  defendant,  and  for  answer  to  plaintiff's  second 
amended  complaint,  as  amended,  admits,  denies,  and  avers  as  follows : 

[General  defense  of  denial.] 
As  a  first  defense: 

1.  Admits  that  on  the  1st  day  of  December,  1897,  defendant  signed 
and  delivered  to  plaintiff  the  written  instrument  in  the  words  and 
figures  set  forth  in  plaintiff's  second  amended  complaint,  as  amended, 
but  denies  that  there  was  a  good  or  valuable,  or  any  consideration 
at  all  therefor;  admits  that  the  letters  "B/L"  in  said  instrument 
mentioned,  were  intended  and  understood  by  both  plaintiff  and 
defendant,  at  the  time  of  the  making  and  execution  of  said  instru- 
ment, to  represent  and  to  express  the  words  "bill  of  lading.'' 

2.  Denies  that  the  words  "face  of  all  drafts"  in  said  instrument 
set  forth,  at  the  time  of  the  making  and  execution  of  said  instrument, 
or  at  any  other  time,  or  at  all,  were  understood  by  plaintiff  and 
defendant  herein,  or  were  understood  by  plaintiff  or  defendant,  to 
mean  the  face  of  each  and  every  draft  for  oranges,  with  bill  of  lading 
attached,  drawn  by  the  Haight  Fruit  Company,  in  favor  of  the  First 
National  Bank  of  Redlands,  during  the  orange  season  of  1897  and 
1898,  or  that  the  same  were  understood  by  either  plaintiff  or  defend- 
ant to  mean  the  face  of  each  draft,  or  any  draft,  so  drawn  during 
said  season;  denies  that  it  was  understood  that  said  words  "face  of 
all  drafts"  meant  each  draft  and  every  draft,  or  meant  each  draft  or 
any  draft,  so  drawn  during  said  season ;  denies  that  said  instru- 
ment was  signed  by  defendant,  and  accepted  by  said  First  National 
Bank  of  Redlands,  or  that  said  instrument  was  signed  by  defend- 
ant, or  that  the  same  was  accepted  by  plaintiff,  with  such  under- 
standing as  to  the  significance  of  the  said  instrument. 

3.  Defendant  avers  that  she  has  no  information  or  belief  upon  the 
subject  sufficient  to  enable  her  to  answer  any  of  the  allegations 


1384  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

contained  in  the  fifth  paragraph  of  said  complaint,  and,  placing  her 
denial  of  all  of  the  allegations  contained  in  said  paragraph  on  that 
ground,  she  denies  each  and  every  allegation  in  said  paragraph 
contained. 

4-8.  [Here  follow  similar  denials  of  allegations  contained  in  para- 
graphs 6,  7,  8,  9,  10,  and  11,  of  the  complaint.]  x 

[Defense  of  dishonoring  of  drafts  due  to  wrongful  acts  of  the  plaintiff.] 

And  for  another,  further,  and  separate  defense  to  plaintiff's  alleged 
cause  of  action,  defendant  alleges : 

1.  That  prior  to  and  at  the  time  of  the  execution  by  defendant  of 
the  instrument  set  forth  in  plaintiff's  second  amended  complaint,  and 
as  an  inducement  and  consideration  leading  her  so  to  do,  and  without 
which  she  would  not  have  executed  said  instrument,  the  plaintiff 
represented  to  defendant  that  by  the  terms  of  said  instrument  it  was 
understood,  and  it  was  in  fact  understood,  to  be  the  effect  of  the 
terms  of  said  instrument  that  by  the  attaching  of  the  bills  of  lading 
therein  mentioned  to  any  such  drafts  that  might  be  drawn  in  favor  of 
plaintiff  by  the  said  Haight  Fruit  Company,  a  lien  to  the  amount  of 
the  drafts  so  attached  to  said  bills  of  lading  would  be  created  against 
the  oranges  consigned  and  represented  by  said  bills  of  lading,  and 
that  defendant's  liability,  if  any,  under  the  said  instrument  was  con- 
ditioned upon  a  deficiency  remaining  unpaid  after  the  exhaustion  of 
the  security  afforded  by  said  bills  of  lading;  that  she  should  be 
liable  for  only  90  per  cent  of  the  total  amount  of  the  face  of  all  drafts 
so  drawn  during  the  orange  season  of  1897  and  1898,  and  not  for  90 
per  cent  of  the  face  of  each  and  every  draft. 

2.  That  as  to  all  the  drafts  mentioned  in  said  second  amended  com- 
plaint, upon  which  defendant's  liability  as  guarantor  or  otherwise  is 
alleged,  the  plaintiff,  without  the  consent  or  knowledge  of  defend- 
ant, permitted  the  said  Haight  Fruit  Company  and  the  railroad  com- 
panies issuing  the  bills  of  lading  attached  to  said  draft,  to  wrongfully 
and  without  authority,  divert  said  consignments  to  other  consignees 
and  other  destinations  than  as  represented  by  said  bills  of  lading; 
that  by  reason  of  such  wrongful  diversion  and  non-delivery  of  such 
oranges  to  the  respective  consignees,  in  said  bills  of  lading  named, 
said  drafts  were,  and  each  of  them  was,  dishonored  by  the  respective 

l  The  complaint  in  the  action  of  First  National  Bank  of  Redlands  v.  Bowers,  supra. 
Is  given  in  form  No.  788,  p.  1390,  for  the  purpose  of  fully  disclosing  the  issues 
raised  by  the  pleadings  in  the  case,  and  illustrating  the  various  defenses  in  the 
answer,   form  No.  787. 


Ch.  XCVII.]  ANSWERS.— FORiMS.  1385 

drawees  or  drawee  therein  named,  and  that  by  reason  of  such  unlaw- 
ful and  wrongful  diversion  and  non-delivery  of  such  oranges  the 
plaintiff  was  deprived  of,  and  plaintiff  consented  to  and  negligently 
suffered  and  permitted  itself  to  be  deprived  of,  the  said  liens  upon 
such  oranges  securing  said  drafts,  which  said  liens  were,  under  the 
terms  of  said  instrument,  and  understood  as  aforesaid  by  both  plaint- 
iff and  defendant,  to  inure  to  the  benefit  of  defendant,  and  without 
the  exhaustion  of  which  no  liability  would  accrue  to  defendant  on 
said  drafts;  that  defendant  was  not  notified  of  the  non-payment  or 
non-acceptance  of  any  of  said  drafts ;  and  that  each  and  all  of  said 
diversions  and  non-deliveries  were  so  made  and  permitted  by  said 
plaintiff  without  the  consent  or  knowledge  of  defendant. 

3.  That  plaintiff  has  never  taken  any  steps  to  recover  from  said 
railroad  companies,  or  any  of  them,  or  from  said  Haight  Fruit  Com- 
pany, damages  for  such  unlawful  diversion  and  non-delivery,  but  has 
at  all  times  negligently  failed,  neglected,  and  refused,  and  now  negli- 
gently fails,  neglects,  and  refuses,  to  take  any  steps  whatsoever  to 
protect  defendant  in  the  application  of  such  liens  on  said  oranges  to 
such  drafts,  or  any  of  them,  or  to  recover  from  said  railroad  com- 
panies, or  said  Haight  Fruit  Company,  or  the  several  parties  to  whom 
respective  shipments  of  oranges  were  diverted,  the  value  of  the  liens 
or  interest  in  said  oranges,  of  which  benefit  the  defendant  was 
deprived  by  reason  of  such  wrongful  diversion  and  non-delivery;  but 
that,  on  the  contrary,  the  plaintiff  has,  during  all  the  times  in  this 
answer  mentioned,  wrongfully  and  unlawfully  conspired  with  the 
said  railroad  companies  and  said  Haight  Fruit  Company  to  divert  said 
oranges  from  the  consignees  and  destinations  respectively  named  in 
said  bills  of  lading  and  the  persons  upon  whom  said  drafts  were 
drawn,  and  to  render  said  bills  of  lading  worthless  and  of  no  effect 
as  securities  for  the  payments  of  the  drafts  respectively  accompany- 
ing them. 

[Defense  that  value  of  property  represented  by  bills  of  lading  offset  value  of 
drafts.] 

And  for  another,  further,  and  separate  defense  to  plaintiff's 
alleged  cause  of  action,  defendant  avers: 

1.  That  she  hereby  repeats,  and  makes  a  part  of  this  defense,  all 
the  statements  contained  in  paragraphs  1,  2,  and  3  of  her  second 
defense  herein  stated. 


1386  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

2.  And,  upon  information  and  belief,  defendant  alleges  that  the 
oranges  represented  by  said  bills  of  lading  were  equal  in  value  to  the 
amounts  of  the  face  of  the  respective  drafts  to  which  the  same  were 
attached. 

[Defense  of  payment.] 

1.  And  for  another,  further,  and  separate  defense,  defendant,  upon 
information  and  belief,  alleges  that  prior  to  the  commencement  of 
this  action  the  said  Haight  Fruit  Company  paid  to  the  plaintiff  herein 
the  full  amount  due  upon  each  and  all  of  the  said  drafts. 

[Defense  of  wrongful  diversion  of  surplus  moneys  which  should  have  been 
applied  on  drafts.] 

And  for  another,  further,  and  separate  defense,  defendant,  upon 
information  and  belief,  alleges  that  of  each  and  every  of  such  drafts 
drawn  during  said  season  by  said  Haight  Fruit  Company,  in  favor  of 
plaintiff,  with  bills  of  lading  attached,  other  than  those  named  in 
plaintiff's  complaint  to  have  been  unpaid,  the  plaintiff  received  the 
face  value  thereof  from  the  drawees  respectively  named  therein; 
that  upon  each  of  such  drafts  so  paid  the  plaintiff  had  advanced  to 
said  Haight  Fruit  Company  90  per  cent  of  the  face  value  thereof,  and 
no  more ;  that  as  to  such  remaining  ten  per  cent,  the  surplus  received 
by  the  plaintiff  on  such  drafts  so  paid,  the  plaintiff,  without  the  con- 
sent and  against  the  will  of  defendant,  wrongfully  failed  and  neg- 
lected to  apply  such  surplus  to  the  deficiency  existing  in  those  cases 
set  forth  in  plaintiff's  compaint  where  drafts  were  not  paid,  and 
failed  and  neglected  to  hold  such  surplus  to  meet  such  deficiency 
should  the  same  thereafter  arise  during  said  season,  but  wrongfully 
and  negligently  permitted  the  said  Haight  Fruit  Company  to  apply 
such  surplus  money  on  other  indebtedness  than  that  arising  by  reason 
of  the  non-payment  of  said  drafts,  and  did  itself  sequester  and  apply 
certain  of  the  said  surplus  fund,  the  exact  amount  whereof  is  to  this 
defendant  unknown,  to  other  indebtedness  owing  by  said  Haight 
Fruit  Company  to  said  plaintiff,  so  that  all  of  said  surplus  fund  was 
exhausted,  and  none  of  it  was  applied  upon  any  of  the  unpaid  drafts, 
or  any  part  thereof,  mentioned  in  said  complaint ;  that  said  surplus 
fund  was  sufficient  to  have  fully  paid  all  the  drafts  unpaid  by  the 
respective  drawees  thereof,  or  otherwise,  and  for  the  non-payment  of 
which  the  plaintiff  brings  this  action.     And  the  defendant,  upon  her 


Ch.  XCV1I.J  ANSWERS.— FORMS.  1387 

information  and  belief,  alleges  that  at  all  times  during  said  orange 
season  there  were  other  general  funds  belonging  to  the  said  Haight 
Fruit  Company,  and  deposited  with  plaintiff,  which  were  within  the 
power  of  plaintiff  to  have  sequestered  and  applied  to  and  upon  said 
unpaid  drafts,  but  that  plaintiff  wrongfully,  and  without  the  consent 
and  against  the  will  of  defendant,  failed,  neglected,  and  refused  to  so 
sequester  and  apply  such  other  and  general  funds  of  said  Haight 
Fruit  Company  to  the  payment  of  said  unpaid  drafts,  or  any  of  them. 

[Defense  of  non-observance  of  instructions  accompanying  drafts,  and  failure 
to  enforce  lien  upon  bills  of  lading.] 

For  another,  further,  and  separate  defense  to  plaintiff's  alleged 
cause  of  action,  defendant  avers : 

1.  That  she  hereby  repeats  and  makes  a  part  of  this  defense  all  of 
the  statements  contained  in  paragraphs  1,  2,  and  3  of  her  second 
defense  herein  stated. 

2.  That  defendant  is  informed  and  believes,  and  upon  such  informa- 
tion and  belief  alleges  the  fact  to  be,  that  the  said  Haight  Fruit 
Company  made  a  part  of  each  and  every  draft  drawn  by  it,  and  men- 
tioned in  paragraph  9  of  plaintiff's  second  amended  complaint,  as 
amended,  a  certain  printed  form  of  instructions,  and  that  each  of  said 
drafts  was  received  by  plaintiff  with  said  instructions  pinned  thereto, 
and  constituting  a  part  thereof,  and  subject  to  the  terms  of  said 
instructions ;  and  that  plaintiff,  for  itself  and  for  its  collecting  agents 
and  correspondents,  to  whom  said  drafts  were  forwarded  by  plaintiff 
for  presentment  to  the  respective  drawees  therein  named  for  accept- 
ance or  for  payment,  agreed  with  said  Haight  Fruit  Company  to 
abide  by  said  printed  instructions ;  and  that  each  and  every  of  said 
drafts  was  sent  to  the  collecting  agents  and  correspondents  of  plaint- 
iff with  said  instructions  thereon  constituting  a  part  thereof.  That 
said  printed  instructions  which  were  so  pinned  on  and  made  a  part 
of  each  of  said  drafts  contained,  among  other  things,  the  words  and 
figures  following,  to  wit:  *  *  *  "Instructions  to  the  bank. 
*  *  *  This  collection  covers  goods  now  due  in  your  city.  Please 
present  for  acceptance  without  delay,  but  hold  until  goods  arrive  if 
necessary.  Do  not  return  the  documents  unless  instructed  from  Cali- 
fornia to  do  so.  Permit  inspection  on  track.  If  not  accepted  immedi- 
ately on  arrival  of  goods,  wire  direct  to  Haight  Fruit  Company  of 
Redlands,  Cal.,  and  follow  their  instructions.    If  not  paid  promptly 


1388  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

at  maturity,  wire  bank  to  which  this  collection  is  made  payable,  with 
exchange  and  collection  charges.  Draft  drawn  with  exchange  and 
charges  and  must  be  paid;  differences  regarding  same  to  be  adjusted 
between  payor  and  Haight  Fruit  Company.  Allow  1%  per  cent  dis- 
count for  cash." 

3.  That  by  the  terms  of  said  instructions  the  plaintiff  consented  to 
the  direction  of  the  said  Haight  Fruit  Company  that  the  plaintiff  and 
its  said  collection  agents  might  present  any  such  draft  to  the  drawee 
thereof,  and  the  consignee  of  the  bill  of  lading  attached  thereto 
should  not  return  such  draft  or  bill  of  lading  in  the  event  that  such 
draft  was  dishonored  by  non-acceptance  or  non-payment,  unless 
directed  to  do  so  by  said  Haight  Fruit  Company,  and  that  in  each  and 
every  instance  where  said  drafts  were  dishonored  neither  the  said 
Haight  Fruit  Company  nor  plaintiff  herein  gave,  or  caused  to  be 
given,  any  instructions  for  the  return  of  such  dishonored  drafts  and 
bills  of  lading  attached  thereto,  but  that  plaintiff  permitted  and  con- 
sented to  the  said  Haight  Fruit  Company  negligently  allowing  said 
dishonored  drafts  and  the  bills  of  lading  attached  thereto  to  remain 
in  the  hands  of  such  collecting  agents,  and  such  Haight  Fruit  Com- 
pany and  plaintiff  each  neglected  and  refused  to  take  any  steps  to 
enforce  the  lien  existing  upon  such  bills  of  lading  and  the  fruit  rep- 
resented thereby  for  the  payment  of  the  drafts  respectively  attached 
to  such  bills  of  lading,  and  at  all  times  have  failed,  neglected,  and 
refused  to  seek  satisfaction  against  the  railroad  companies  issuing 
such  bills  of  lading  or  delivering  the  fruit  represented  thereby.  That 
by  the  terms  of  said  instructions  the  plaintiff  authorized  and  per- 
mitted the  said  collecting  agents  and  correspondents  to  deliver  the 
bills  of  lading  attached  to  any  such  draft  to  the  drawee  named  in 
such  draft,  upon  the  acceptance  of  such  draft,  and  that  such  authori- 
zation was  in  violation  of  the  terms  of  the  alleged  guaranty  sued  upon 
in  this  action,  whereby  the  respective  bills  of  lading  attached  to  such 
drafts  were  only  to  be  delivered  to  the  drawee  in  such  draft  named 
upon  the  payment,  and  not  upon  the  acceptance,  of  such  draft;  and 
that  the  bills  of  lading  attached  to  each  and  every  of  the  drafts  men- 
tioned in  paragraph  9  of  plaintiff's  second  amended  complaint  were 
delivered  to  the  drawee  in  such  drafts  named  upon  the  acceptance, 
and  before  the  payment,  thereof.  That  by  the  terms  of  said  instruc- 
tions the  plaintiff  consented  to  and  authorized  such  collecting  agents, 
in  the  event  such  drafts  were  not  accepted  immediately  upon  the 


Ch.XCVII.J  ANSWERS.— FORMS.  1389 

arrival  of  the  goods  against  which  such  drafts  were  drawn,  to  wire 
direct  to  said  Haight  Fruit  Company,  and  to  follow  the  instructions 
that  might  be  given  by  said  Haight  Fruit  Company  in  regard  to  the 
disposition  of  the  goods  against  which  drafts  were  drawn,  and  that 
in  each  and  every  instance  in  which  said  drafts  were  not  accepted 
such  collecting  agents  wired  for  instructions  to  said  Haight  Fruit 
Company,  and  said  Haight  Fruit  Company  directed  the  disposition 
of  the  fruit  against  which  such  dishonored  drafts  were  drawn, 
regardless  of  the  outstanding  bill  of  lading  which  secured  the  pay- 
ment of  such  dishonored  drafts;  and  that  plaintiff  negligently  per- 
mitted and  authorized  the  disposition  by  said  Haight  Fruit  Company 
of  the  fruit  represented  by  such  bill  of  lading,  without  requiring  that 
such  outstanding  bill  of  lading  be  delivered  up  and  the  fruit  sold  and 
the  proceeds  applied  in  payment  of  the  advances  made  by  plaintiff 
and  guaranteed  by  defendant  upon  such  dishonored  drafts. 

4.  [Here  follow  averments  of  agreements  entered  into  between  the 
Haight  Fruit  Company  and  the  railroad  companies,  whereby  the 
provisions  as  to  said  bills  of  lading  were  rendered  ineffectual,  and 
thereby  the  said  bills  of  lading  were  rendered  worthless  as  security, 
and  alleging  that  the  plaintiff  knew  of  said  arrangement  whereby  the 
fruit  was  subject  to  disposition  upon  the  order  of  said  Haight  Fruit 
Company  regardless  of  the  bills  of  lading,  and  that  the  alleged  guar- 
anty sued  upon  in  the  action  was  abandoned  maliciously  and  fraudu- 
lently and  with  intent  to  deceive  the  defendant  in  this  and  other 
respects ;  that  by  reason  of  said  agreements  existing  between  the  said 
Haight  Fruit  Company  and  the  railroad  companies,  "or  of  the  con- 
spiracy existing  between  said  Haight  Fruit  Company  and  the  said 
plaintiff,  to  deprive  the  defendant  of  the  security  which  should  have 
been  afforded  her,"  etc.,  defendant  did  not  know  and  did  not  have 
any  means  of  obtaining  knowledge  of  the  facts,  etc.] 

[Defense  based  upon  failure  to  deliver  agreed  security  for  acceptance  and 
payment.] 

And  for  another,  further,  and  separate  defense,  defendant  avers : 
1.  That  at  the  city  of  Redlands,  San  Bernardino  County,  state  of 
California,  on  or  about  the  respective  dates  upon  which  this  plaintiff 
alleges  in  paragraph  9  of  its  second  amended  complaint,  as  amended, 
plaintiff  advanced  90  per  cent  of  the  face  value  of  each  of  those  cer- 
tain drafts  of  the  Haight  Fruit  Company,  drawn  in  favor  of  plaintiff, 


1390  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

and  in  said  paragraph  9  specifically  enumerated,  the  defendant  was 
on  each  of  said  respective  dates  entitled  to  have  said  bill  of  lading 
and  the  oranges  represented  by  each  bill  of  lading  that  was  attached 
to  each  of  said  drafts  held  by  plaintiff  as  security  for  the  acceptance 
and  payment  of  said  drafts. 

2.  That  thereafter,  and  on  or  about  the  said  respective  dates,  and 
while  the  defendant  was  so  entitled  to  have  said  bills  of  lading,  and 
the  oranges  represented  thereby,  held  by  plaintiff  as  security  for 
defendant  as  aforesaid,  at  the  said  city  of  Redlands,  plaintiff,  with- 
out the  consent  or  knowledge  of  defendant,  took  each  of  said  respect- 
ive bills  of  lading,  and  all  the  oranges  represented  thereby,  and  con- 
verted each  of  said  respective  bills  of  lading,  and  all  of  the  oranges 
represented  thereby,  to  its  own  use. 

3.  That  each  of  said  bills  of  lading,  with  the  oranges  represented 
thereby,  so  wrongfully  taken  and  converted  by  plaintiff  to  its  own 
use,  was  at  the  time  and  place  of  said  conversion  worth  more  than 
the  face  value  of  the  draft  to  which  such  bill  of  lading  was  attached. 

Wherefore,  the  defendant  prays  that  the  plaintiff  take  nothing  by 
its  complaint  in  this  action  against  defendant,  and  that  defendant 
have  and  recover  of  plaintiff  her  costs  herein  expended. 

Edward  R.  Annable, 
Hunsaker  &  Britt, 
[Verification.]  Attorneys  for  defendant. 

FORM   No.  788 — Action  upon  guarantee  of  drafts  with  bills  of  lading  attached. 

(In  First  National  Bank  of  Redlands  v.  Bowers,  153  Cal.  95;  94  Pac.  422.) 

[Title  of  court  and  cause.] 

Now  comes  the  plaintiff  above  named  and,  by  leave  of  court  first  had  and 
obtained,  files  this  its  second  amended  complaint,  as  amended,  and  for  cause  of 
action   alleges: 

1,  2.  [Averments  as  to  incorporation  of  plaintiff  company,  and  of  the  Haight 
Fruit  Company.] 

3.  That  the  said  Haight  Fruit  Company  was  during  the  years  1897  and  189S,  and 
for  many  years  prior  thereto,  had  been  engaged  in  the  business  of  dealing  In 
fruits  in  southern  California,  buying,  selling,  packing,  and  shipping  the  same  to 
the  various  markets  of  the  United  States  and  Canada,  and  having  its  principal 
place  of  business  in  the  city  of  Redlands,  and  dealing  largely  in  the  citrus  fruits 
of  southern  California,  and  that  being  desirous  of  financial  assistance  to  enable  it 
to  carry  on  its  said  business  for  the  season  of  1897  and  1898,  applied  to  plaintiff 
herein  to  furnish  it  the  funds  for  that  purpose;  that  the  plaintiff  agreed  to  make 
such  advancements  to  the  said  Haight  Fruit  Company  for  the  said  season  of  1897 
and  1898,  in  the  event  that  the  same  should  be  guaranteed  by  a  good  and  suf- 
ficient guarantor;  that  the  defendant  herein,  in  consideration  of  such  advances, 
and  to  obtain  funds  for  the  said  Haight  Fruit  Company  to  carry  on  the  said  busi- 
ness, and  for  divers  other  good  and  valuable  considerations,  did,  on  the  1st  day  of 
December,  1897,  execute  to  this  plaintiff  a  written  guaranty  in  the  words  and  fig- 


CH.XCVIL]  ANSWERS.— FORMS.  1391 

ures  following,  to  wit:  "Redlands,  Cal.,  Dec.  1st,  1897.  To  the  First  National  Bank 
of  Redlands,  Cal.  I  hereby  guarantee  to  said  bank  90  per  cent  of  the  face  of  all 
drafts  for  oranges,  with  B/L  attached,  and  drawn  by  the  Haight  Fruit  Co.  in  favor 
of  said  First  National  Bank,  during  the  season  of  1897  and  '98.  Gertrude  S.  Bow- 
ers." 

4.  That  the  letters  "B/L,"  in  said  guaranty  mentioned  were  intended  and  under- 
stood by  both  plaintiff  and  defendant,  at  the  time  of  the  making  and  execution  of 
said  guaranty,  to  represent  and  express  the  words  "bill  of  lading";  that  the  words 
in  said  guaranty  set  forth,  to  wit,  "face  of  all  drafts,"  at  the  time  of  the  making 
and  execution  of  said  guaranty,  were  understood  by  both  plaintiff  and  defendant 
herein  to  mean  the  face  of  each  and  every  draft  for  oranges,  with  bill  of  lading 
attached,  drawn  by  the  Haight  Fruit  Company  in  favor  of  the  First  National  Bank 
of  Redlands  during  the  orange  season  of  1897  and  1S98,  and  it  was  with  that  under- 
standing as  to  the  significance  of  said  guaranty  that  the  same  was  signed  by 
defendant  and  accepted  by  said  First  National  Bank  of  Redlands. 

5.  That  thereafter,  and  during  the  time  referred  to  in  said  written  guaranty, 
to  wit,  during  the  orange  season  of  1897  and  1898,  the  Haight  Fruit  Company 
packed  and  shipped  various  carloads  and  lots  of  oranges  to  various  and  divers  per- 
sons in  various  parts  of  the  United  States,  and  made  drafts  upon  the  respective 
parties  to  whom  said  lots  and  carloads  of  oranges  were  shipped  for  the  purchase 
price  of  said  respective  lots  and  carloads  when  the  same  had  been  sold,  and  for 
about  three-fourths  of  the  value  of  said  carloads  when  shipped  to  their  agents  for 
sale,  which  drafts  were  drawn  in  favor  of  plaintiff  or  its  order,  and  attached  to 
each  of  said  drafts  was  the  bill  of  lading  for  each  respective  lot  or  carload  of 
oranges  so  shipped  as  aforesaid;  that  all  of  said  drafts  were  drawn  by  said  Haight 
Fruit  Company  in  favor  of  plaintiff,  or  order,  and  were  payable,  in  some  instances 
in  thirty,  others  in  fifteen  days,  after  date,  and  in  some  instances  on  sight,  and 
others  at  so  many  days  after  sight. 

6.  That  said  drafts  were  all  substantially  in  the  following  form,  save  and  except 
only  as  date  and  number  of  draft,  number  of  car,  name  of  drawee,  amount,  and 
date  of  maturity  of  said  drafts,  to  wit:  "Established  1889.  Haight  Fruit  Company, 
incorporated.  Packers  and  shipper's.  Oranges,  raisins,  dried  fruits.  Redlands, 
Cal.,  May  12,  1898.  Thirty  days  after  date,  pay  to  the  order  of  First  National  Bank 
of  Redlands  $500.00,  with  exchange.  Value  received  and  charge  to  account  of 
Haight  Fruit  Co.  By  L.  G.  Haight.  To  Charles  H.  Parsons  Fruit  Co.,  New  York. 
Car  No.  8620.  F.  X.     Trademark,  Haight  Fruit  Co.,  California." 

7.  That  forthwith,  on  the  making  of  the  said  drafts  respectively,  the  Haight  Fruit 
Company  delivered  the  same  to  plaintiff  herein  with  the  bills  of  lading  attached, 
and  that  plaintiff,  upon  said  delivery  to  it  respectively  as  aforesaid,  forthwith  in 
every  instance  forwarded  said  drafts,  with  the  bills  of  lading  attached  respectively, 
through  its  regular  business  correspondents  for  presentment,  acceptance,  and  pay- 
ment, to  the  various  parties  respectively  upon  whom  said  drafts  respectively  were 
drawn. 

8.  That  forthwith  upon  the  delivery  to  plaintiff  of  each  of  said  drafts  respectively 
by  the  said  Haight  Fruit  Company  as  aforesaid,  plaintiff  advanced  to  said  Haight 
Fruit  Company,  in  consideration  of  said  draft,  and  of  the  delivery  of  the  same  as 
aforesaid,  and  upon  consideration  of  and  upon  the  faith  of  said  guaranty,  90  per 
cent  of  the  face  value  of  said  drafts  respectively  so  drawn  and  delivered  as  afore- 
said; that  all  of  the  drafts  drawn  by  said  Haight  Fruit  Company  as  hereinbefore 
referred  to,  excepting  the  drafts  under  paragraph  11  hereof  set  forth,  were  paid 
by  the  respective  parties  upon  whom  the  same  were  drawn,  or  by  the  Haight  Fruit 
Company,  and  defendant  herein  has  never  paid  90  per  cent,  or  any  per  cent,  or  any 
sum  whatever,  upon  any  draft  whatever,  ever  drawn  by  said  Haight  Fruit  Com- 
pany upon  any  of  the  persons  to  whom  it  had  made  sales  of  oranges  for  the  orange 
season  of  1897  and  1898  as  hereinbefore  set  forth,  or  upon  any  draft  in  this  com- 
plaint set  forth  or  referred  to. 


1392  NEGOTIABLE  INSTRUMENTS.  [Tit  XII. 

9.  That  among  the  drafts  so  drawn  by  said  Haight  Fruit  Company,  and  delivered 
to  plaintiff  as  aforesaid,  and  upon  which  plaintiff  advanced  to  said  Haight  Fruit 
Company  90  per  cent  of  the  face  value  thereof  as  aforesaid,  were  the  following,  to 
wit:  (1)  a  draft  for  $500,  drawn  February  2,  1898,  on  the  Charles  H.  Parsons  Fruit 
Company  at  New  York,  in  the  state  of  New  York,  payable  to  plaintiff,  or  order,  fif- 
teen days  after  date,  and  on  which  an  advancement  of  90  per  cent  of  its  face  value 
was  made  by  said  plaintiff  to  said  Haight  Fruit  Company  on  February  2,  1898. 
[Here  follow  similar  designations  of  thirty-seven  other  drafts  drawn,  upon  which 
advancements  of  90  per  cent  of  the  face  value  thereof  were  made  by  the  plaintiff 
to  the  said  Haight  Fruit  Company.] 

Plaintiff  alleges  that,  in  addition  to  the  drafts  last  hereinbefore  set  forth  under 
this  paragraph,  there  was  drawn  by  the  Haight  Fruit  Company,  on  various  persons 
during  the  said  season  of  1897  and  1898,  various  drafts,  amounting  to  the  said 
drafts  specified,  in  the  aggregate  the  sum  of  $144,501.68,  and  to  each  of  said  drafts 
a  bill  of  lading  was  attached,  and  all  of  said  drafts  were  drawn  for  oranges,  and 
during  the  said  fruit  season,  and  the  plaintiff  did  advance  to  the  said  Haight  Fruit 
Company  upon  each  and  all  of  said  drafts  90  per  cent  thereof,  making  the  whole 
amount  so  advanced  upon  said  drafts  and  under  and  in  pursuance  of  defendant's 
guaranty,  and  upon  the  faith  and  in  consideration  thereof,  the  sum  of  $130,051.52. 
And  plaintiff  avers  that  of  the  said  sum  so  advanced  by  it,  being  90  per  cent  of 
the  face  value  of  said  drafts,  there  has  keen  repaid  to  the  plaintiff,  either  by  the 
persons  upon  whom  said  drafts  were  drawn  or  by  the  Haight  Fruit  Company,  the 
sum  of  $117,521.62,  and  no  more,  leaving  a  balance  due  to  the  plaintiff  upon  said 
advancements  so  made  by  it  to  the  said  Haight  Fruit  Company,  during  the  time 
and  for  the  purposes  aforesaid,  of  the  sum  of  $12,529.92,  no  part  of  which  has  ever 
been  paid,  but  the  whole  thereof  was  on  the  2d  day  of  September,  1898,  due  to  the 
plaintiff  and  unpaid,  and  has  ever  since  remained  so  due  and  unpaid. 

10.  That  none  of  the  drafts  in  the  said  9th  paragraph  specified,  nor  any  part 
thereof,  was  ever  paid  by  the  drawees  therein  named,  or  by  any  other  person,  and 
the  same  now  are  and  remain  wholly  owing,  due,  unpaid,  and  unsatisfied.  And 
plaintiff  further  avers  that  all  of  the  said  drafts,  and  each  of  them,  so  delivered  to 
the  plaintiff  and  drawn  in  plaintiff's  favor  by  the  said  Haight  Fruit  Company  during 
the  said  fruit  season  of  1897  and  1898,  and  drawn  for  oranges  and  delivered  to 
plaintiff  with  the  bills  of  lading  attached,  were  forthwith  forwarded  by  the  plaintiff 
with  bill  of  lading  attached  to  its  regular  correspondent  located  nearest  the  drawee 
in  each  respective  draft  named  for  presentment,  acceptance,  and  collection,  and  in 
each  instance  of  said  drafts  so  forwarded  for  collection  as  aforesaid  the  plaintiff 
was  promptly  notified  of  the  non-acceptance  and  non-payment  of  the  said  drafts, 
and  forthwith  upon  its,  plaintiff's,  receipt  of  the  said  notification  of  such  non- 
acceptance  and  non-payment  of  said  drafts  respectively,  plaintiff  notified  said 
Haight  Fruit  Company  of  said  non-acceptance  and  non-payment.  And  plaintiff 
further  avers  that  a  large  portion  of  said  drafts  so  drawn  by  the  said  Haight  Fruit 
Company  in  favor  of  plaintiff,  and  delivered  to  it  with  the  bill  of  lading  attached, 
were  drawn  by  the  said  Haight  Fruit  Company  upon  its  own  agents,  employed  by 
it  in  the  markets  of  the  United  States,  and  the  bills  of  lading  made  to  and  endorsed 
to  the  said  agents  to  enable  them  to  make  the  sales  of  the  carloads  of  oranges  to 
which  they  referred;  that  others  of  said  bills  of  lading  were  made  to  persons  pur- 
chasers of  said  fruit,  and  the  drafts  drawn  on  the  said  purchasers  or  upon  the 
agents  of  the  said  Haight  Fruit  Company  respectively,  were  forwarded  with  said 
bills  of  lading;  that  of  the  said  drafts  mentioned  in  paragraph  9,  all  drawn  upon 
Charles  H.  Parsons  Fruit  Company  at  New  York,  in  the  state  of  New  York,  and 
upon  N.  A.  Coble  &  Co.  at  Chicago,  and  upon  A.  S.  Brown  &  Co.  at  Boston,  were 
drawn  upon  the  said  Haight  Fruit  Company's  agents  or  brokers  in  said  city,  the 
said  persons  named  being  the  agents  and  brokers  employed  by  the  said  Haight 
Fruit  Company  to  find  purchasers  and  to  make  sales. 

11.  That  the  aggregate  amount  of  the  principal  sums  mentioned  in  said  drafts  so 
drawn   by  said  Haight  Fruit  Company   to   the   order  of   plaintiff   as   aforesaid,   and 


Ch.  XCVII.J  ANSWERS.— FORMS.  1393 

unpaid,  being  the  drafts  heretofore  under  said  paragraph  9  respectively  set  forth 
and  enumerated,  is  the  sum  of  $14,937.40,  of  which  sum  90  per  cent  is  $13,443.66; 
that  of  said  $13,443.66  the  sum  of  $913.74,  and  no  more,  has  been  paid  to  plaintiff 
by  said  Haight  Fruit  Company,  and  there  now  is  and  remains  owing  and  unpaid  to 
plaintiff  upon  the  said  90  per  cent  of  the  principal  sums  of  said  drafts  the  sum  of 
$12,529.92;  that  on  the  2d  day  of  September,  1898,  and  on  various  other  and  subse- 
quent days  and  times,  plaintiff  has  demanded  the  payment  to  it,  plaintiff,  of  the 
said  sum  of  $12,529.92,  but  defendant  has  at  all  times  neglected  and  refused,  and 
now  neglects  and  refuses,  to  pay  plaintiff  the  said  sum  of  $12,529.92,  or  any  part 
thereof,  and  said  sum  of  $12,529.92,  together  with  interest  thereon  from  the  2d  day 
of  September,  189S,  the  date  of  plaintiff's  said  demand  upon  defendant  as  aforesaid, 
now  is  and  remains  wholly  due,  owing,  and  unpaid  by  defendant  to  plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the  sum  of  $12,529.92, 
together  with  interest  thereon  at  the  rate  of  seven  per  cent  per  annum,  from  the 
2d  day  of  September,  1898,  and  for  its  costs  herein. 

J.  S.  Chapman, 
Otis   &   Gregg, 

[Verification.]  Attorneys   for  plaintiff. 

[In  the  foregoing  action  judgment  was  rendered  for  defendant  and  affirmed  on 
appeal.  Upon  the  first  appeal  in  this  case  the  court  held  that  the  wording  of  the 
guaranty  was  not  so  plain,  unambiguous,  and  certain  as  to  have  justified  the  court 
in  refusing  evidence  explanatory  of  it:  First  National  Bank  v.  Bowers,  141  Cal.  253, 
74   Pac.   856.] 


FORM    No.  789 — Denial   of  endorsement. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  complaint  [or  petition]  of  the  plaint- 
iff, denies  that  he  ever  at  any  time  endorsed  the  promissory  note  [or 
bill]  mentioned  in  said  complaint  [or  petition], 

FORM   No.  790 — Denial  of  acceptance. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  complaint  [or  petition]  of  the  plaint- 
iff herein,  denies  that  he  made  the  promissory  note  [or  accepted  the 
bill]  mentioned  in  the  complaint  [or  petition],  or  any  note  [or  bill], 
made  [or  drawn]  in  favor  of  the  payee  [or  drawee]  named. 

FORM   No.  791 — Denial  of  acceptance,  presentment,  and  protest. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  complaint  [or  petition]  of  the  plaint- 
iff, denies: 

That  the  bill  of  exchange  mentioned  therein  was  ever  presented 
for  acceptance  or  accepted  as  alleged,  or  at  all,  or  that  it  was  ever 
presented  for  payment,  or  protested  for  non-payment,  as  alleged  in 
said  complaint  [or  petition],  or  otherwise,  or  at  all. 


1394  NEGOTIABLE  INSTRUMENTS.  [Tit.  XIL 

FORM   No.  792 — Denial  of  presentment. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  complaint  [or  petition]  of  the  plaint- 
iff, denies:  That  the  promissory  note  [or  bill  of  exchange]  mentioned 
therein  was  ever  presented  to  C.  D.  for  payment  [or  for  acceptance] 
as  alleged,  or  at  all. 

FORM    No.  793 — Denying  excuse  for  non-presentment. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition] y 
denies : 

That  due  or  reasonable  search  was  made  when  the  said  bill  of 
exchange  [or  promissory  note]  became  due  and  payable,  to  discover 
the  person  of  the  said  ,  at  ,  or  elsewhere,  or  at  all,  in 

order  that  the  said  bill  might  be  presented  to  the  said  for  pay- 

ment. 

FORM   No.  794 — Denial  of  notice. 

[Title  of  court  and  cause.] 

The  defendant  denies  that  notice  of  the  dishonor  of  the  said 
promissory  note  [or  bill]  was  given  to  the  defendant,  as  alleged  in 
the  complaint  herein,  or  otherwise. 

FORM   No.  795 — Counterclaim  in  action  upon  promissory  note. 

(In  First  National  Bank  v.  Bews,  2  Idaho  1175;  31  Pac.  816.) 

[Title  of  court  and  cause.] 

Defendant  0.  R.  Young,  by  leave  of  the  court  first  had  and 
obtained,  files  his  amended  answer  herein,  and  [for  defense  and 
counterclaim]  x  says: 

1.  That,  at  the  time  of  the  execution  of  the  note  sued  upon  in  this 
action  defendants  therein  also  executed  a  like  note  for  the  same 
amount  to  the  firm  of  Willman  &  "Walker,  then  of  Hailey,  Idaho,  and 
secured  the  payment  of  both  said  notes  by  then  and  there  executing 

l  The  counterclaim  in  this  form  was  held  proper,  and  that  therefore  it  was  error 
to  refuse  to  permit  defendant  to  prove  the  facts  alleged  therein.  The  court  stated 
that  as  it  arose  out  of  the  same  transaction,  and  was  connected  with  the  subject  of 
the  action,  "it  is  a  cause  of  action  arising  upon  a  contract,  and  existed  at  the  com- 
mencement of  the  action,  and  therefore  must  be  set  up,  or  it  is  barred":  First 
National  Bank  of  Hailey  v.  Bews,  2  Idaho  1175,  31  Pac.  816,  818.  See  {  4185,  Rev. 
Laws   Idaho. 


Ch.  XCVII.]  ANSWERS— FORMS.  1395 

their  mortgage  to  plaintiff's  assignor  and  said  firm  of  "VVillman  & 
"Walker,  jointly,  for  the  amount  of  both  of  said  notes,  on  their  certain 
real  property  then  known  as  the  "Hailey  Merchants'  Hotel,"  con- 
sisting of  lots  19  and  20,  of  block  40,  of  the  town  of  Hailey,  with  the 
improvements  thereon,  the  whole  thereof  being  then  worth  much 
over  $40,000. 

2.  That  about  the  1st  day  of  June,  1888,  the  note  sued  upon  in  this 
action  was  assigned  to  plaintiff,  and  thereby  it  became  the  owner  and 
holder  of  the  same,  and  to  the  extent  of  said  note  is  also  owner  in 
the  mortgage  aforesaid. 

3.  That  to  further  secure  said  mortgagees  and  this  plaintiff,  on  or 
about  June  24,  18S8,  defendants  aforesaid  entered  into  an  agreement 
with  said  mortgagees  and  this  plaintiff  to  the  following  effect :  That 
said  mortgagors  would  put  said  mortgagees  and  this  plaintiff  in  pos- 
session of  the  said  property,  with  power  to  use  or  rent  the  same  for 
the  benefit  of  mortgagors,  by  using  or  renting  the  same  to  best 
advantage,  and  apply  the  proceeds  thereof,  first  in  payment  of  taxes 
legally  levied  and  assessed  thereon,  next  in  keeping  said  property 
insured  to  an  amount  of  not  less  than  $25,000,  and  then  apply  any 
overplus  remaining  after  payment  of  taxes  and  premium  on  insurance 
aforesaid,  first  to  the  interest  accruing  on  said  notes,  and  next 
towards  the  principal,  and  so  on,  until  all  of  said  notes  be  fully 
satisfied ;  and  in  case  of  loss  by  fire  before  said  notes  were  paid,  then 
to  apply  so  much  of  the  insurance  aforesaid  as  would  be  necessary  to 
satisfy  the  same. 

4.  Thereupon  said  mortgagees  and  this  plaintiff  did  agree  with 
said  mortgagors,  defendants  herein,  to  use  or  rent  said  property,  col- 
lect the  rents,  pay  the  taxes,  insure  and  keep  the  same  insured  for 
$25,000,  pay  the  insurance  and  principal  out  of  said  rents  or  insur- 
ance, in  the  manner  and  form  as  stated  in  the  third  paragraph  of  this 
answer. 

5.  Thereupon,  the  said  mortgagees  and  this  plaintiff  having 
accepted  and  agreed  to  do  and  perform  the  matters  and  things  as  in 
said  paragraph  4  of  this  answer  stated  and  contained,  and  in  consid- 
eration thereof,  said  mortgagees  and  this  plaintiff  were  duly  put  in 
possession  of  the  property  aforesaid,  and  from  said  day,  and  con- 
tinuously thereafter,  said  mortgagees  and  this  plaintiff  remained  in 
possession  of  the  same,  used,  rented,  and  collected  the  rents  thereof, 
and  applied  the  same  to  their  own  use. 


1396  NEGOTIABLE  INSTRUMENTS.  [Tit.  XII. 

6.  That  the  said  income  so  collected,  and  for  the  purpose  aforesaid, 
largely  exceeded  the  possible  taxes  and  insurance  premium  aforesaid. 

7.  That  on  July  2d,  and  during  mortgagees'  and  said  plaintiff's 
possession,  said  property  was  consumed  by  fire,  and  was  a  total  loss, 
and  the  insurance  money  which  mortgagees  and  this  plaintiff  did 
recover  under  the  insurance  aforesaid  largely  exceeds  any  possible 
amount  of  both  principal  and  interest  on  both  of  the  notes  aforesaid, 
and  the  same  are  fully  paid,  and  a  large  amount  over  and  above  the 
same  is  due  defendants. 

"Wherefore,  [etc.,  prayer  for  allowance  of  amount  found  due  the 
defendants  and  that  the  same  be  decreed  a  counterclaim,  etc.]. 

C.  D.,  Attorney  for  defendants. 
[Verification.] 

Plea  of  payment  is  set  up  in  the  foregoing  form,  and  it  is  error  to  refuse  to  per- 
mit defendants  to  introduce  evidence  under  such  plea:  First  National  Bank  ol 
Hailey  v.  Bews,  2  Idaho  1175,  31  Pac.  816,  818. 

Form  of  petition  in  an  action  to  recover  on  a  note:  Kemper  v.  l_,ord,  6  Kan.  App. 
64,  49  Pac.  638. 

Form  of  complaint  in  an  action  on  a  lost  note:  Sauter  v.  Leveridge,  103  Mo.  615e 
618,  620,  15  S.  W.  981. 


§346.     ANNOTATIONS.— Negotiable  instruments. 

1,  2.  Actions. — Copy  of  note  in  pleading. 

3.  Holder  may  sue  in  his  own  name. 

4.  Averment  as  to  transfer. 

5-7.  Holding  imports  promise  to  pay. — Averment  as  to  execution. 

8.  Promise  to  pay. — From  what  implied. 

9.  Promise  to  third  party  to  pay  upon  a  contingency. 
10.  Note   falling  due   upon   happening  of   contingency. 

11,  12.  Non-payment,  averment  as  to. 

13,  14.  Place  of  execution  of  note. — When  necessary  to  plead. 

15.  Attorneys'  fees  stipulated  in  note. 

16.  Defenses. — Note  given  in  payment  for  interest  in  land. 

17.  As  to  holders  other  than  those  "in  due  course." 

18.  Issue  as  to  security  given. — How  defense  is  raised  under  the  statute. 
19,  20.  Payment  as  defense. — Under  general  denial. 

1.  ACTIONS. — Copy  of   note    in    plead-  2.     A  copy  of  a  note  referred  to  in  the 

Ing. — The    material    substance   and   legal  body  of  a  complaint,  and  annexed  to  the 

effect  of  a  note,   read  from  the  body  of  complaint,    might    properly    be    referred 

the  complaint,   without  reference   to  the  to    by    the    court    for    ascertaining    the 

copy   exhibited,    may   constitute    a   suffi-  "words  and  figures"  and  the  form  of  the 

cient  statement  as  against  a  general  de-  note:     Ward  v.  Clay,  82  Cal.  502,  505,  23 

murrer:  Ward  v.  Clay,  82  Cal.  502,  504,  23  Pac.  50,  227. 

Pac.    50,    227.     See   Phelps   v.    Owens,    11  3.   Holder  may  sue  in  his  own  name. — 

Cal.    25;    Slattery  v.    Hall,    43    Cal.    195;  "The  holder  of  a  negotiable  instrument 

Berry  v.  Cammet,  44  Cal.  352;  Reynolds  may  sue   thereon  in  his  own   name  and 

v.   Hosmer,   45  Cal.   630;   Chase  v.   Evoy,  payment  to  him  in  due  course  discharges 

68   Cal.   352.  the     instrument":      Idaho     Rev.     Codes, 


Ch.  XCVII.] 


ANNOTATIONS. 


1397 


§  3508,  construed  with  other  sections  in 
Craig  v.  Palo  Alto  Stock  Farm,  16  Idaho 
701,  102  Pac.  393,  394. 

4.  Averment  as  to  transfer. — An  aver- 
ment of  valuable  consideration  for  the 
transfer  from  an  original  payee  to  the 
plaintiff  is  generally  immaterial,  as  pos- 
session of  a  note,  whether  obtained  be- 
fore or  after  maturity,  is  prima  facie 
evidence  of  ownership:  McCann  v. 
Lewis,  9  Cal.  246;  Meadowcraft  v.  Walsh, 
15  Mont.  544,  550,  39  Pac.  914. 

5.  Holding  imports  promise  to  pay. — 
Under  the  code  system  of  pleading,  it  is 
not  necessary  to  aver  an  express  promise 
to  pay  in  an  action  on  a  note:  Kansas 
City  Nat.  Bank  v.  Landis,  34  Mo.  App. 
433;  Hammett  v.  Trueworthy,  51  Mo. 
App.  2S1,  284;  Bick  v.  Yates,  137  Mo. 
App.   268,  117  S.  W.  650. 

6.  The  allegation  in  a  complaint,  "that 
defendant  executed  to  plaintiff  a  promis- 
sory note,"  is  equivalent  to  an  allega- 
tion "that  defendant  made  his  note  pay- 
able to  plaintiff."  An  allegation  that 
defendant  executed  to  plaintiff  his  note 
in  writing,  or  made  his  note  in  writing 
payable  to  plaintiff,  includes  and  im- 
ports a  delivery  of  the  same  to  plaintiff: 
Hook  v.  White,  36  Cal.  299,  302,  citing 
Churchill  v.  Gardner,  7  T.  R.  597;  Rus- 
sell v.   Whipple,    2   Cow.   536. 

7.  Any  averment  of  a  continuous  hold- 
ing or  ownership  of  a  promissory  note, 
after  the  allegation  of  the  execution  of 
the  promissory  note  to  plaintiff  by  the 
defendant,  is  deemed  to  be  surplusage, 
inasmuch  as  the  making  and  delivery  of 
a  promissory  note,  or  the  execution  of 
such  note,  imports  a  liability  to  pay  in 
accordance  with  its  terms,  without  any 
averment  of  a  continuous  holding  or 
ownership:  Hook  v.  White,  36  Cal.  299, 
302.  See  Wedderspoon  v.  Rogers,  32  Cal. 
571;  Poorman  v.  Mills,  35  Cal.  118,  95 
Am.  Dec.  90. 

8.  Promise  to  pay. — From  what  im- 
plied.— An  allegation  that  a  promissory 
note  was  executed  and  delivered  neces- 
sarily implies  a  promise  by  the  maker  to 
pay,  and  an  allegation  that  such  a  note 
was  executed  and  delivered  to  a  person 
or  persons  named  implies  a  promise  to 
pay  whomsoever  is  so  named:  Bick  v. 
Clarke,  134  Mo.  App.  544.  114  S.  W.  1144, 
1145. 

9.  Promise  of  third   party  to  pay  upon 
a  contingency. — In  an  action  on  a  prom- 
Jury's  PL— 89. 


issory  note  which  a  third  party  had 
agreed  to  pay  upon  confirmation  of  title 
of  his  grantor  to  certain  lands,  and  in 
consideration  of  which  promise  plaintiff 
forebore  to  sue  until  the  decision  as  to 
such  title,  neither  such  third  party  nor 
his  grantee  is  a  necessary  party:  Smith 
v.  Lawrence,  38  Cal.  24,  99  Am.  Dec.  344. 

10.  Note  falling  due  upon  happening  of 
contingency. — -A  complaint,  which  among 
other  things,  alleges:  "That  at  the 
time  of  the  execution  of  said  note,  be- 
fore delivery  thereof,  and  as  part  of  the 
consideration  for  the  acceptance  of  said 
note  by  said  Dunham,  Fletcher  &  Cole- 
man, the  said  R.  H.  Parker  endorsed 
said  note  as  follows:  'March  15,  1905. 
Should  I  make  a  transfer  of  my  real  es- 
tate before  this  note  becomes  due,  I 
agree  to  pay  same  on  demand.  R.  H. 
Parker.'  That  no  part  of  the  principal 
or  interest  of  said  note  has  been  paid, 
except  interest  thereon  from  August  1, 
1907,  and  no  more.  That  said  R.  H. 
Parker  has  since  the  execution  of  said 
note  made  a  transfer  of  his  real  estate, 
and  said  note,  together  with  interest 
thereon  from  August  1,  1907,  is  now  due 
and  payable  by  him";  held,  sufficient  as 
against  demurrer  as  stating  the  ultimate 
fact  of  transfer  of  the  note,  and  as  suffi- 
ciently showing  that  the  note  was  due: 
Loveday  v.  Parker,  50  Wash.  260;  97  Pac. 
62,  64. 

11.  Non-payment,  averment  as  to. — In 
an  action  on  a  note,  the  plaintiff  must 
allege  its  non-payment:  Scroufe  v.  Clay, 
71  Cal.  123,   124,   11  Pac.  882. 

12.  In  some  jurisdictions  it  is  not  nec- 
essary to  aver  in  a  complaint  that  a  note 
is  unpaid:  Keteltas  v.  Myers,  19  N.  Y. 
231;  Gans  v.  Beasley,  4  N.  Dak.  140,  59 
N.  W.  714,  719. 

13.  Place  of  execution  of  note. — In  an 
action  upon  a  promissory  note  it  is  not 
necessary  to  allege  the  place  where  such 
instrument  was  executed,  except  where 
it  is  necessary  to  a  recovery  to  show  that 
the  instrument  sued  upon  was  executed 
in  another  jurisdiction;  and  where  the 
contrary  is  not  shown,  it  will  be  pre- 
sumed that  the  note  was  executed  in  the 
state  where  suit  is  brought:  Grimes  v. 
Tait,  21  Okla.  361,  99  Pac.  811,   812. 

14.  When  necessary  to  plead  place  of 
execution. — Where  plaintiff  relies  upon 
the  laws  of  any  foreign  jurisdiction  for 
recovery    upon    a   promissory    note,    and 


1398 


NEGOTIABLE  INSTRUMENTS. 


[Tit.  XII. 


where  the  note  neither  discloses  the 
place  of  its  execution  nor  the  place 
of  payment,  it  is  necessary  to  plead 
the  place  of  execution  of  the  note  in 
controversy:  Grimes  v.  Tait,  21  Okla. 
361,   99  Pac.   811,  812. 

15.  Attorneys'  fees  stipulated  in  note. 
--In  an  action  for  attorneys'  fees  stipu- 
lated for  in  certain  promissory  notes 
sued  upon,  the  complaint  must  allege  all 
the  facts  necessary  to  show  a  contract 
to  pay  such  fees,  the  contingencies,  and 
the  happening  of  those  contingencies, 
upon  which  the  agreement  became  abso- 
lute, such  as  placing  the  instrument  in 
the  hands  of  an  attorney  for  collection, 
and  the  sum  paid  or  contracted  to  be 
paid  the  attorney  for  his  services:  Smith 
v.  Chiles  (Tex.  Civ.  App.),  115  S.  W. 
598. 

16.  DEFENSES. — Note  given  in  pay- 
ment for  interest  in  land. — It  is  no  de- 
fense to  a  note  given  in  consideration 
of  a  conveyance  to  the  maker  of  all  the 
Interest  of  the  payee  in  a  certain  tract 
of  land,  that  the  payee  had  no  interest 
in  the  land,  unless  the  sale  was  procured 
by  the  fraud  of  the  payee,  or  by  reason 
of  mistake  of  such  a  character  that 
equity  would  relieve  the  maker  from  its 
effects:  O'Sullivan  v.  Griffith,  153  Cal. 
502,  505,  95  Pac.  873,  96  Pac.  323;  Owens 
v.  Thompson,  4  111.  502;  Hulett  v.  Hamil- 
ton, 60  Minn.  21,  61  N.  W.  672. 

17.  A  negotiable  instrument  in  the 
hands  of  any  holder  other  than  a  holder 
"in  due  course"  is  subject  to  the  same 
defense  as  if  it  were  non -negotiable: 
Craig  v.  Palo  Alto  Stock  Farm,  16  Idaho 
701,  102  Pac.  393,  394,  construing  Idaho 
Rev.  Codes,  §  3515. 

18.  Issue  as  to  security  givsn. — How 
defense  is  raised  under  the  statute. — 
Where  an  action  is  commenced  upon 
a  promissory  note,  the  plaintiff  is  prima 


facie  entitled  to  maintain  his  action, 
and  the  fact  that  the  obligation  upon 
which  he  sues  is  secured  by  mortgage  is 
a  matter  of  defense,  the  burden  of  which 
rests  upon  the  defendant  to  make  it  ap- 
pear by  his  pleading,  and  in  doing  so 
he  must  bring  himself  within  the  pur- 
view of  the  statute.  It  is  not  sufficient 
to  bar  the  action  that  it  appears  that 
security  has  been  given  for  the  obliga- 
tion. The  security  must  appear  to  be  in 
the  form  of  a  mortgage,  or,  adopting  the 
most  liberal  view,  to  be  what  the  law 
would  deem  the  equivalent  of  a  mort- 
gage. The  replication  can  not  be  con- 
strued to  include  personal  or  collateral 
security  or  any  other  form  of  security 
not  falling  within  the  meaning  of  that 
term.  Allegations  which  merely  amount 
to  a  statement  that  the  plaintiff  had 
taken  security  do  not  present  an  issue 
coming  within  the  purview  of  the  stat- 
ute:" State  Sav.  Bank  v.  Albertson,  39 
Mont.  414,   102  Pac.   692,   695. 

19.  Payment  as  defense.  —  Payment 
may  be  proved,  though  not  averred,  un- 
der an  answer  which  denies  that  the 
debt  is  not  paid  in  full  or  that  there  is 
now  due  from  defendant  to  plaintiff 
any  sum  whatever:  Mickle  v.  Heinlen, 
92  Cal.  596,  28  Pac.  784.  Compare:  Pier- 
cy  v.  Sabin,  10  Cal.  22,  70  Am.  Dec.  692; 
Esbensen  v.  Hover,  3  Colo.  App.  467,  33 
Pac.  1008;  Benicia  Agricultural  Works  v. 
Creighton,  21  Ore.  495,  28  Pac.  775,  30 
Pac.  676;  Clark  v.  Wick,  25  Ore.  446,  36 
Pac.  165. 

20.  A  general  denial,  under  some  au- 
thorities, has  been  held  sufficient  to  en- 
able defendant  to  prove  payment:  Fair- 
child  v.  Amsbaugh,  22  Cal.  572.  See 
Brooks  v.  Chilton,  6  Cal.  640;  Frisch  v. 
Caler,  21  Cal.  71;  Brown  v.  Orr,  29  Cal. 
120;  Davanay  v.  Eggenhoff,  43  Cal.  395; 
Wetmore  v.  San  Francisco,  44  Cai.    294. 


Ch.  XCVIII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1399 


CHAPTER   XCVIII. 

Guaranty   and   Suretyship. 

Page 

347.  Complaints  [or  petitions]  1399 

Form  No.  796.  By  surety,  for  money  paid  on  undertaking  on 

appeal 1399 

Form  No.  797.  By  surety,  on  lease,  against  principal 1400 

Form  No.  798.  On  guaranty  of  antecedent  debt 1401 

Form  No.  799.  On  agreement  to  answer  for  price  of  goods  sold 

to  a  third  person   1401 

Form  No.  800.  Against  principal  and  sureties,  on  contract  for 

work  1402 

Form  No.  801.  Against  guarantor  of  mortgage,  to  recover  fore- 
closure deficiency  1402 

Form  No.  802.  By  surety  against  principal,  for  indemnity 1403 

Form  No.  803.  Against  surety,  for  payment  of  rent 1404 

Form  No.  804.  Upon  original  obligation  of  a  promisor,  to  repay 
moneys  advanced  to  another  upon  the  order 
of  the  promisor,  the  order  itself  being  lost. .     1404 

Form  No.  S05.  Against  guarantors  of  a  promissory  note 1406 

I  348.  Answers    140S 

Form  No.  806.  Defense  that  guarantor  had  no  notice  of  non- 
payment  of   note    until    after   insolvency    of 

maker 1408 

Form  No.  807.  Defense  that  sureties  signed  notes  without  con- 
sideration, and  at  the  instance  of  the  plaintiff 
only 1409 


§347.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  796 — By  surety,  for  money  paid  on  undertaking  on  appeal. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  one  L.  M.  recovered  judg- 
ment in  the  court  of  the  county  of  ,  state  of  , 
against  the  defendant,  for  $  ,  from  which  the  said  defendant 
appealed  to  the             court  of 

2.  That  on  the  day  of  ,  19  ,  at  defendant's  request, 
the  plaintiff  executed  an  undertaking  on  appeal,  a  copy  of  which  is 
hereto  annexed,  marked  "Exhibit  A,"  and  made  a  part  hereof,  in 
the  sum  of  $             ,  conditioned  to  abide  and  perform  the  order  and 


2400  GUARANTY  AND  SURETYSHIP.  [Tit.  XII. 

judgment  of  said  appellate  court  and  pay  all  money,  costs,  and  dam- 
ages which  might  be  required  of  or  awarded  against  the  said  defend- 
ant. 

3.  That  on  the  day  of  ,  19  ,  the  said  judgment  was 
affirmed  by  said  [appellate]  court,  in  the  sum  of  $  damages, 
and  $            costs. 

4.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  com- 
pelled to  pay  $  upon  said  undertaking,  the  amount  of  said 
judgment,  to  the  said  L.  M. 

5.  That  said  sum  has  not  been  repaid  to  the  plaintiff,  nor  any  part 
thereof. 

[Concluding  part.] 

FORM   No.  797 — By  surety,  on  lease,  against  principal. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  or  about  the  day  of  ,  19  ,  the  defendant 
entered  into  an  agreement,  in  writing,  whereby  he  hired  of  L.  M.  the 
dwelling-house  known  as  No.  Street,  in  the  city  of  ,  for 
the  term  of  ,  agreeing  to  pay  therefor,  to  the  said  L.  M.,  the 
rent  of  $              in  equal  [quarterly]  instalments. 

2.  That,  at  the  request  of  the  defendant,  the  plaintiff  made  and 
delivered  to  the  defendant  his  guaranty  thereon,  in  writing,  whereby 
the  plaintiff  guaranteed  the  faithful  performance  on  the  part  of  the 
defendant  of  the  said  agreement. 

3.  That  the  defendant  delivered  said  agreement  and  guaranty  to 
L.  M.,  and  thereupon,  and  in  consideration  thereof,  obtained  and  had 
possession  of  said  premises,  pursuant  to  said  agreement,  whereby  the 
defendant  became  liable  to  the  said  L.  M.  for  the  rent  therein  named. 

4.  That  a  portion  of  said  rent,  to  wit,  the  instalment  of  $  , 
which  became  due  on  the  day  of  ,  19  ,  the  defendant 
failed  to  pay. 

5.  That  the  plaintiff  was  compelled  to  pay,  and  did  pay  on  the 

day  of  ,  19     ,  at  ,  to  the  said  L.  M.,  at  his  request, 

and  to  the  use  of  defendant,  the  sum  of  $  ,  being  the  aforesaid 

sum,  with  interest. 

6.  [Same  as  paragraph  5,  form  No.  796.] 
[Concluding  part.] 


Ch.  XCVIII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1401 

FORM   No.  798 — On  guaranty  of  antecedent  debt. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  L.  M.  was 
then  indebted  to  this  plaintiff  in  the  sura  of  $ 

2.  That  on  the  day  of  ,  19  ,  at  .  the  defendant 
made  and  subscribed  a  memorandum,  in  writing,  of  which  the  fol- 
lowing is  a  copy :  [Copy  of  guaranty] ,  and  delivered  the  same  to  the 
plaintiff,  and  thereby  promised  to  the  plaintiff  to  answer  to  him  for 
said  debt. 

3.  That  the  plaintiff  duly  performed  all  the  conditions  thereof  on 
his  part. 

4.  [Same  as  paragraph  5,  form  No.  796.] 
[Concluding  part.] 

The  plaintiff  may  properly  join  in  his  complaint  the  original  obligor  and  the  guar- 
antor in  an  action  upon  the  contract  and  guaranty  thereof:  Senn  v.  Connelly 
(S.  Dak.),  120  N.  W.  1097,  1098,  citing  S.  Dak.  Code  Civ.  Proa,  §  101. 

FORM   No.  799 — On  agreement  to  answer  for  price  of  goods  sold  to  a  third 
person. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  in  consideration 
that  the  plaintiff,  at  the  request  of  the  defendant,  would  sell  to  one 
L.  M.,  on  a  credit  of  one  year,  such  goods  as  said  L.  M.  should  desire 
to  buy  of  this  plaintiff,  the  defendant  promised  to  be  answerable  to 
the  plaintiff  for  the  payment  by  said  L.  M.  of  the  price  of  goods  so 
sold  on  credit. 

2.  That  this  plaintiff  afterwards,  and  on  the  faith  of  said  guaranty, 
sold  and  delivered  to  the  said  L.  M.  [give  description  of  goods],  for 
the  sum  of  $  ,  upon  a  credit  of  one  year,  of  all  which  the  defend- 
ant had  due  notice. 

3.  That  payment  of  the  same  was  thereafter,  at  the  time  of  and 
after  the  expiration  of  said  term  of  credit,  demanded  from  said 
L.  M.,  but  the  same  was  not  paid,  of  all  which  due  notice  was  given 
to  the  defendant. 

4.  That  thereafter,  to  wit,  on  the  day  of  ,  19  ,  at  , 
payment  of  the  same  was  demanded  by  the  plaintiff  from  the  defend- 
ant, but  the  same  has  not  been  paid,  nor  any  part  thereof. 

[Concluding  part.] 


1402  GUARANTY  AND  SURETYSHIP.  [Tit.  XII. 

FORM   No.  800 — Against  principal  and  sureties  on  contract  for  work. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  articles  of 
agreement  were  entered  into  between  the  plaintiff  and  the  defend- 
ants, bearing  date  the  day  of  ,  19  ,  of  which  the  follow- 
ing is  a  copy :   [Set  out  copy.] 

2.  That  the  plaintiff  afterwards  duly  performed  all  the  conditions 
of  the  said  contract  on  his  part,  and  that  the  same  was  fully  com- 
pleted on  the  day  of  ,  19  ,  and  that  on  that  day  he  was 
entitled  to  have  and  receive  from  the  defendants  upon  said  contract 
for  said  work  mentioned  in  said  agreement  the  sum  of  $ 

3.  That  the  defendants  have  wholly  failed  to  perform  the  said  con- 
tract on  their  part,  and  have  wholly  neglected  and  refused  to  pay  the 
said  sum,  or  any  part  thereof. 

[Concluding  part.] 

FORM   No.  801 — Against  guarantor  of  mortgage,  to   recover  foreclosure  de- 
ficiency. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  on  or  about  the  day  of  ,  19  ,  the  defendants 
entered  into  an  agreement  with  the  plaintiff,  of  that  date,  in  the 
words  and  figures  following:    [Insert  copy.] 

2.  That  the  principal  sum  secured  by  the  note  and  mortgage 
referred  to  in  the  said  agreement  became  due  and  payable  on  the 

day  of  ,  19     ,  and  that  on  or  about   [insert  date]   the 

plaintiff  commenced  an  action  in  the  court  of  the  county  of 

,  in  this  state,  for  the  foreclosure  of  the  said  mortgage;  and 
such  proceedings  were  thereupon  had  that  on  the  day  of  , 

19  ,  a  decree  was  duly  given  and  made  by  the  said  court,  for  the 
foreclosure  of  the  said  mortgage  and  sale  of  the  premises ;  and  that  if 
the  proceeds  of  such  sale  should  be  insufficient  to  pay  the  amount 
reported  due  to  the  plaintiff,  with  interest  and  costs,  the  amount  of 
such  deficiency  should  be  specified  in  the  report  of  sale  therein,  and 
M.,  one  of  the  defendants  therein,  should  pay  the  same  to  the 
plaintiff. 

3.  That  pursuant  to  said  decree  or  judgment,  the  premises  were 
duly  sold  on  [insert  date]  by  the  sheriff  of  county,  in  this  state, 


Ch.  XCV1II.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  14(j:{ 

for  the  price  or  sum  of  $  [and  that  the  plaintiff  became  the 

purchaser  thereof]. 

4.  That  upon  said  sale  there  occurred  a  deficiency  of  $  ,  as 
appears  by  the  sheriff's  [or  commissioner's]  report  of  said  sale,  duly 
filed  in  the  office  of  the  clerk  of  said  court,  and  that  thereupon,  to 
wit,  on  the  day  of  ,  19  ,  a  judgment  was  rendered  in 
said  court  against  M.  in  favor  of  the  plaintiff,  for  the  said  sum  of 
$            ,  with  interest  from              ,  19     . 

5.  That  before  the  commencement  of  this  action,  he  demanded  of 
the  defendants  payment  of  the  amount  of  such  deficiency,  and  at  the 
same  time  tendered  to  them  an  assignment  of  said  judgment  against 
M.,  duly  executed  by  the  plaintiff,  but  that  the  defendants  refused 
to  pay  the  same,  and  have  ever  since  neglected  and  refused  to  pay  the 
same,  or  any  part  thereof,  although  the  plaintiff  has  always  been, 
and  still  is,  ready  and  willing  to  deliver  to  said  defendants  an 
assignment  of  said  judgment  upon  being  paid  the  amount  due 
thereon. 

[Concluding  part.] 

FORM   No.  802 — By  surety  against  principal,  for  indemnity. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant,  in 
consideration  that  the  plaintiff  would  become  surety  for  him,  by  exe- 
cuting an  undertaking,  a  copy  of  which  is  hereto  annexed,  marked 
"Exhibit  A,"  and  made  a  part  of  this  complaint  [or  petition],  prom- 
ised and  agreed  with  the  plaintiff  that  he  would  indemnify  him,  and 
save  him  harmless  from  and  against  all  damages,  costs,  and  charges 
which  he  might  sustain  by  reason  of  his  becoming  surety  as  aforesaid. 

2.  That  the  plaintiff,  confiding  in  such  promise  of  the  defendant, 
executed  and  delivered  such  undertaking,  but  the  defendant  did  not 
indemnify  the  plaintiff  and  save  him  harmless  from  such  damages, 
costs,  and  charges;  that,  on  the  contrary,  the  plaintiff,  under  a  judg- 
ment, on  the  day  of  ,  19  ,  duly  given  and  made  against 
him  by  the  court,  at  ,  in  an  action  brought  against  him 
upon  said  undertaking,  paid,  on  the  day  of  ,  19     ,  $ 

to  ,  in  satisfaction  and  discharge  of  said  undertaking,  and  also 

necessary  costs  and  expenses  in  said  action  and  on  account  of  said 
undertaking,  to  the  amount  of  $ 


f404  GUARANTY  AND  SURETYSHIP.  [Tit.  XII. 

3.  That  the  defendant  had  due  notice  thereof,  and  that  the  plaint- 
iff duly  performed  all  the  conditions  of  the  said  agreement  on  his  part 
to  be  performed. 

4.  [Same  as  paragraph  5,  form  No.  796.] 
[Concluding  part.] 

FORM    No.  803 — Against  surety,  for  payment  of  rent. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  or  about  the  day  of  ,  19  ,  at  ,  one 
L.  M.,  by  agreement,  in  writing,  with  this  plaintiff,  hired  of  the 
plaintiff  for  the  term  of  years  the  [designate  the  prem- 
ises] ,  at  the  annual  rent  of  $             ,  payable  quarterly. 

2.  That  [at  the  time  and  place  above  mentioned]  the  defendant,  in 
consideration  of  the  letting  of  the  said  premises  to  the  said  L.  M.,  sub- 
scribed and  delivered  to  the  plaintiff  an  agreement  in  writing,  of 
which  the  following  is  a  copy:  [Set  out  copy],  whereby  he  guaran- 
teed the  payment  of  the  said  rent. 

3.  That  the  rent  aforesaid  for  the  quarter  ending  on  the  day 
of            ,  19     ,  amounting  to  $             ,  has  not  been  paid. 

4.  That  on  the  day  of  ,  19  ,  the  plaintiff  gave  notice 
to  the  defendant  of  the  non-payment  of  said  rent,  and  demanded  pay- 
ment thereof. 

5.  That  said  sum  has  not  been  paid,  nor  any  part  thereof,  and  that 
the  same  is  now  due  and  payable  from  the  defendant  to  the 
plaintiff. 

[Concluding  part.] 

FORM  No.  804 — Upon  original  obligation  of  a  promisor,  to  repay  moneys 
advanced  to  another  upon  the  order  of  the  promisor,  the 
order  itself  being  lost. 

(In  People's  Bank  v.  Stewart,  136  Mo.  App.  24;  117  S.  W.  99. )x 
For  a  cause  of  action  against  the  defendant,  the  plaintiff  alleges: 
1.  That  at  all  the  dates  and  times   mentioned  in  this   petition 
plaintiff  was,  and  it  now  is,  a  banking  corporation  organized  under 

l  Actions  in  the  nature  of  that  set  forth  in  form  No.  804  are  deemed,  under  the 
code,  not  to  be  upon  guaranty  required  to  be  in  writing,  inasmuch  as  the  credit  in 
such  case  is  extended  to  the  original  promisor,  irrespective  of  who  may  derive  the 
immediate  benefits  from  the  moneys  advanced  thereon.  Such  an  action  is  not  gov- 
erned by  the  law  relating  to  suretyship  or  guaranty:  People's  Bank  v.  Stewart,  136 
Mo.  App.  24,  117  S.  W.  99,  101. 


Ch.  XCVIIL]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1405 

the  laws  of  the  state  of  Missouri,  and  during  all  of  said  times  was, 
and  it  now  is,  engaged  in  the  banking  business  at  Aurora,  Missouri, 
and  that  at  all  said  times  Roley  &  Co.  was,  and  it  now  is,  a  copartner- 
ship engaged  in  running  and  operating  a  zinc  mine  at  Aurora,  Mis- 
souri. 

2.  That  on  January  6,  1906,  the  defendant  herein,  Peter  W.  Stew- 
art, by  his  written  order  of  that  date,  duly  executed  by  him  and  deliv- 
ered to  the  plaintiff,  which  said  order  is  lost,  and  can  not  be  filed 
herewith  for  that  reason,  ordered  and  requested  the  plaintiff  to 
advance  to  the  said  partnership  of  Eoley  &  Co.  such  sum  as  was 
needed  to  meet  the  paper  of  the  said  partnership  down  to  and  includ- 
ing that  date. 

3.  That  on  the  said  last-mentioned  date  the  plaintiff  accepted  the 
said  order  of  the  defendant,  and  advanced  to  the  said  Roley  &  Co., 
on  the  said  order  and  request  of  said  defendant,  the  sum  then  due  by 
the  said  partnership  on  account  of  its  paper,  which  plaintiff  alleges 
was  the  sum  of  $300;  and  plaintiff  further  states  that  it  then  paid 
said  sum  upon  said  order  of  the  defendant  on  account  of  the  said 
paper  of  the  said  partnership  of  the  said  Roley  &  Co. 

4.  Plaintiff  further  states  that  the  defendant  herein,  Peter  "W. 
Stewart,  had  notice  of  the  acceptance  by  the  said  plaintiff  of  the 
written  order  aforesaid,  and  of  the  fact  that  the  plaintiff  had  paid  the 
sum  aforesaid  on  account  of  the  paper  of  the  said  partnership  as 
aforesaid. 

5.  Plaintiff  further  states  that  no  part  of  the  said  sum  so  paid  by 
it  on  the  order  in  writing  aforesaid,  signed  and  delivered  to  it  as 
aforesaid  by  the  defendant,  has  been  paid  to  it  by  the  said  defendant 
or  by  the  said  partnership,  but  the  whole  thereof  remains  due  and 
unpaid,  although  the  same  has  been  demanded  of  the  defendant  and 
from  the  said  partnership. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defendant 
for  the  said  sum  of  $300,  with  interest  thereon  from  January  6,  1906, 
at  the  rate  of  six  per  cent  per  annum  [etc.]. 

McPherson  &  Hilpert, 
Attorneys  for  plaintiff. 

For  the  California  statute  enumerating  the  various  classes  of  promises  to  answer 
for  the  obligation  of  another  deemed  original  obligations  of  the  promisor,  and  there- 
fore not  required  to  be  in  writing,  see  Civ.   Code,   §  2794. 

Form  No.  804  may  be  used  in  an  action  where  the  order  upon  which  moneys 
directed  to  be  paid  is  not  lost,  by  omitting  the  allegation  therein  to  that  effect,  rest- 
ing upon  the  averments  as  to  the  making  of  the  order,  its  acceptance,  etc. 


1406  GUARANTY  AND  SURETYSHIP.  [Tit.  XII. 

FORM   No.  805 — Against  guarantors  of  a  promissory  note. 

(In  Merchants'  Trust  Co.  v.  Bentel,  10  Cal.  App.  75;  101  Pac.  31.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  for  cause  of  action 
alleges : 

1.  That  the  plaintiff  is,  and  for  more  than  one  year  last  past  has 
been,  a  banking  corporation  duly  created,  organized,  and  existing 
under  the  laws  of  the  state  of  California,  and  having  its  principal 
place  of  business  at  the  city  of  Los  Angeles,  in  said  state. 

2.  That  on  the  10th  day  of  April,  1907,  plaintiff,  at  the  said  city  of 
Los  Angeles,  state  of  California,  loaned  to  The  Hecla  Consolidated 
Mines  Company,  a  corporation,  and  said  The  Hecla  Consolidated 
Mines  Company  borrowed  and  received  of  the  plaintiff,  the  sum  of 
$3,000,  in  gold  coin  of  the  United  States  of  America,  which  said  sum 
the  said  Hecla  Consolidated  Mines  Company  agreed  to  repay  to  the 
plaintiff  herein,  at  its  banking-house  in  the  said  city  of  Los  Angeles, 
on  the  10th  day  of  October,  1907,  with  interest  thereon  from  April 
10,  1907,  until  paid,  at  the  rate  of  seven  per  cent  per  annum,  payable 
monthly,  and  if  not  so  paid  the  interest  should  become  a  part  of  the 
principal,  and  thereafter  bear  like  interest  as  the  principal;  and  it 
was  also  agreed  that  in  case  suit  be  brought  to  compel  payment  of 
said  note  it  would  pay  an  additional  sum  of  ten  per  cent  on  the 
unpaid  principal  and  interest  as  attorney's  fees,  and  would  also  pay 
costs  of  suit,  and  that  the  principal  and  interest  should  be  paid  in 
gold  coin  of  the  United  States;  that  to  evidence  said  loan  and  the 
terms  thereof,  and  for  the  aforesaid  consideration  and  loan,  the  said 
Hecla  Consolidated  Mines  Company  thereupon,  and  on  the  said  10th 
day  of  April,  1907,  made,  executed,  and  delivered  to  the  plaintiff 
herein  its  certain  promissory  note,  in  words  and  figures  following, 
to  wit:  "Los  Angeles,  Cal.,  April  10,  1907.  No.  1382.  Six  months 
after  date,  for  value  received,  we  promise  to  pay  to  the  Merchants' 
Trust  Company,  or  order,  at  its  banking-house  in  Los  Angeles,  three 
thousand  dollars  ($3,000)  with  interest  from  date  until  paid,  at  the 
rate  of  seven  (7)  per  cent  per  annum,  payable  monthly,  and  if  not 
so  paid  the  interest  shall  become  a  part  of  the  principal  and  there- 
after bear  like  interest  as  the  principal.  In  case  suit  be  brought  to 
compel  payment  of  this  note,  we  agree  to  pay  an  additional  sum  of 
ten  per  cent  on  the  unpaid  principal  and  interest  as  attorneys'  fees 
and  costs  of  suit.     Principal  and  interest  payable  in  gold  coin  of  the 


Ch.XCVIII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1407 

United  States.     The  Hecla  Consolidated  Mines  Company.     Edwin  M. 
Hills,  Pres.     Wm.  S.  Vawter,  Secy.     [Corporation  seal.]" 

3.  That  at  the  time  of  the  making,  execution,  and  delivery  of  the 
aforesaid  promissory  note,  to  wit,  the  said  10th  day  of  Apr^l,  1907, 
and  as  a  part  of  the  same  transaction,  and  as  the  consideration  and 
inducement  upon  which  and  for  which  the  plaintiff  herein  made  the 
said  loan,  and  in  consideration  of  said  loan  so  made,  the  defendants, 
together  with  other  persons,  to  wit,  John  R.  Bragdon,  William  S. 
Vawter,  T.  H.  Dudley,  C.  C.  Bragdon,  and  Edwin  M.  Hills,  made, 
subscribed,  and  caused  to  be  endorsed  and  delivered  upon  the  back 
of  the  said  promissory  note  their  written  instrument  of  guaranty  in 
words  as  follows:  "We  hereby  jointly  and  severally  guarantee  pay- 
ment of  the  within  note,  or  any  renewal  or  extension  thereof,  and  all 
expenses  of  collection  thereof,  and  waive  demand,  presentment  for 
payment,  protest,  and  notice  of  protest,  and  consent  that  the  time  for 
payment  may  be  extended  without  notice  to  [here  follow  signatures 
of  all  said  persons  including  the  guarantors]." 

4.  That  prior  to  the  commencement  of  this  action  there  had  been 
paid  upon  the  principal  sum  of  said  promissory  note  the  sum  of 
$1,500,  and  all  interest  accrued  thereon  to  November  10,  1907;  and 
that  there  now  remains  due,  owing,  payable,  and  unpaid  upon  said 
promissory  note  a  balance  of  the  principal  sum  of  $1,500,  together 
with  interest  upon  said  balance  from  November  10,  1907,  at  the  rate 
of  seven  per  cent  per  annum,  payable  monthly. 

5.  That  prior  to  the  commencement  of  this  action  plaintiff  de- 
manded payment  of  said  The  Hecla  Consolidated  Mines  Company  of 
the  balance  due  and  unpaid  on  said  promissory  note,  and  that  said 
The  Hecla  Consolidated  Mines  Company  has  not  paid  said  balance,  or 
any  part  thereof,  or  any  interest  thereon,  nor  have  the  above-named 
defendants,  or  either  or  any  of  them,  paid  the  said  balance  of  prin- 
cipal and  interest  upon  said  note,  or  any  part  or  portion  thereof,  but 
the  whole  of  said  balance  of  $1,500,  and  interest  thereon  as  in  said 
note  provided,  from  November  10,  1907,  remains  and  is  now  due, 
owing,  payable,  and  unpaid  to  the  plaintiff  herein. 

6.  That  the  sum  of  $150  is  a  reasonable  sum  to  be  allowed  to  the 
plaintiff  herein  for  the  services  of  its  attorney  in  this  action,  as  in 
said  note  provided. 

Wherefore,  plaintiff  prays  judgment  against  said  defendants  for 
the  sum  of  $1,500,  and  interest  thereon  from  November  10,  1907,  until 


1408  GUARANTY  AND  SURETYSHIP.  [Tit.  XII. 

entry  of  judgment,  all  in  gold  coin  of  the  United  States  of  America, 
and  for  the  further  sum  of  $150  as  its  attorneys'  fees,  and  for  costs 
of  suit.  Patton  &  Sage, 

[Verification.]  Attorneys  for  plaintiff. 


§348.     ANSWERS. 

FORM   No.  806 — Defense  that  guarantor  had  no  notice  of  non-payment  of  note 
until  after  insolvency  of  maker. 

(In  Withers  v.  Berry,  25  Kan.  373.) 
[Title  of  court  and  cause,  etc.] 

The  defendant,  for  answer  to  plaintiff's  petition,  denies  each  and 
every  material  allegation  therein  contained,  except  such  as  may  be 
hereinafter  admitted. 

Defendant,  further  answering  said  petition,  says  that  prior  to  the 
time  when  said  note  in  the  petition  mentioned  became  due  and  pay- 
able, he  sold  and  delivered  the  note  to  plaintiff  and  signed  the  same 
as  guarantor;  that  said  note  became  due  and  payable  on  the 
day  of  ,  19     ;  that  but  one  of  the  original  parties  to  said  note 

was  solvent  at  the  time  it  became  due  and  payable,  and  that  plaintiff 
well  knew  that  one  was  the  only  one  of  the  original  makers  of 

the  note  who  was  solvent  at  the  time  of  said  sale  and  transfer  by 
defendant  to  plaintiff;  that  plaintiff  did  not  give  defendant  any 
notice  of  the  non-payment  of  said  note  until  in  the  month  of  , 

19     ;  that  at  that  time  the  said  had  left  the  state  of  ,  and 

had  become  and  was  insolvent,  and  all  of  the  original  makers  of  the 
note  were  at  that  time  insolvent ;  that  if  plaintiff  had  used  due  dili- 
gence in  suing  upon  said  note,  or  had  given  notice  to  defendant  of 
the  non-payment  of  the  note  prior  to  the  time  said  left  the 

state  and  became  insolvent,  he,  the  defendant,  could  have  saved 
himself  from  loss  of  the  payment  of  the  note  mentioned;  but  that, 
by  reason  of  said  neglect  to  sue  or  give  notice  to  defendant  before 
the  said  left  the  state  and  became  insolvent,  the  defendant  is 

unable  to  save  himself  from  the  loss  of  said  sum  in  the  note  men- 
tioned. 

Defendant,  further  answering,  says  that  by  reason  of  said  want  of 
demand  and  due  notice  of  defendant,  the  plaintiff  ought  not  to 
recover  of  him,  the  defendant. 


Ch.  XCIX.]  ANSWERS,  ETC.  HOO 

Wherefore,  defendant  prays  that  said  cause  may  be  dismissed  as 
to  him,  and  that  he  may  recover  his  costs  herein  expended. 

[Signature,  etc.] 

FORM   No.  807 — Defense  that   sureties   signed    notes  without   consideration, 
and  at  the  instance  of  the  plaintiff  only. 

(In  Barnes  v.  Van  Keuren,  31  Neb.  165;  47  N.  W.  848.) 

[Title  of  court  and  cause.] 

Defendants  deny  every  allegation  of  the  petition  not  herein  ex- 
pressly admitted,  and  admit  the  signing  of  the  notes  in  the  petition 
mentioned ;  but  they  aver  that  they  signed  said  notes  as  sureties  for 
the  defendant  ,  and  without  any  consideration  therefor,  at  the 

special  instance  and  request  of  the  plaintiff. 

That  the  principal  maker  of  the  notes  never  requested  the  defend- 
ants to  sign  the  same,  but  that  the  same  was  done  for  the  plaintiff's 
accommodation  after  the  delivery  of  the  notes  by  the  principal  maker 
thereof.     [Etc.] 

Form  of  answer  in  an  action  on  an  indemnity  contract:  Hogers  v.  Kimball,  121 
Cal.  247,   53  Pac.   64S. 

Forms  of  petition  and  reply  in  an  action  against  defendant  as  guarantor  of  a  con- 
tract of  lease  entered  into  between  plaintiff  and  a  third  person:  Walser  v.  Wear, 
141  Mo.  443,   446,  42  S.  W.  928. 


CHAPTER  XCIX. 

Chattel  Mortgages  and  Pledges. 

Page 

349.  Code  provisions 1410 

350.  Complaints  [or  petitions]    1410 

Form  No.  808.  For  foreclosure  of  chattel  mortgage.    (Common 

form.)    1410 

Form  No.  809.  To  foreclose  chattel  mortgage  for  default  in 
making  payments  of  instalments,  and  pray- 
ing for  appointment  of  receiver 141 1 

Form  No.  810.  For  foreclosure  of  pledge 1413 

Form  No.  811.  To  recover  for  loss  of  pledge 1413 

Form  No.  812.  To  recover  for  injury  to  pledge 1414 

Form  No.  813.  By  pledgeor    of    note    as    collateral,    against 

pledgee 1 414 

Form  No.  814.  For  an  accounting  concerning  pledged  goods, 
and  for  an  injunction  restraining  the  sale  of 
goods  where  the  amount  due  is  in  dispute. . .     1415 


1410  CHATTEL  MORTGAGES  AND  PLEDGES.  [Tit.  XII. 

§  351.  Judgment  [or  decree]   141& 

Form  No.  815.  On  foreclosure  of  chattel  mortgage  and  order 

of  sale,  and  appointing  commissioner 1415 

§  352.  Annotations    141T 

§349.     CODE  PROVISIONS. 

When  seller  may  rescind  the  sale,  or  enforce  his  lien. 
California,  §  1749.  If  a  buyer  of  personal  property  does  not  pay 
for  it  according  to  contract,  and  it  remains  in  the  possession  of  the 
seller  after  payment  is  due,  the  seller  may  rescind  the  sale,  or  may 
enforce  his  lien  for  the  price,  in  the  manner  prescribed  by  the  title 
on  liens.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5096.     North  Dakota,  Rev.  Codes  1905,  §  5410. 
South   Dakota,  Rev.  Codes  1903,  C.  C.  §  1314. 

§350.     COMPLAINTS   [OR  PETITIONS]. 

FORM   No.  808 — For  foreclosure  of  chattel  mortgage.     (Common  form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
made  and  executed  his  certain  promissory  note,  in  writing,  in  words 
and  figures  as  follows:  [Here  copy  note],  whereby  he  promised  to 
pay  the  plaintiff  the  sum  of  $  ,  with  interest  at  the  time  and  in 
the  manner  therein  specified,  and  then  and  there  delivered  the  said 
note  to  the  plaintiff. 

2.  That  at  the  time  and  place  aforesaid,  in  order  to  secure  the 
payment  of  said  note,  the  defendant  executed  and  delivered  to  the 
plaintiff  his  certain  instrument  in  writing,  to  wit,  a  chattel  mort- 
gage, a  copy  of  which  is  as  follows :  [Here  set  out  copy]  ;  that  said 
chattel  mortgage  was  made  in  good  faith  for  the  purpose  aforesaid, 
without  intent  to  defraud  creditors  or  purchasers,  and  was  verified, 
acknowledged,  and  recorded  pursuant  to  the  statute  in  such  case 
made  and  provided. 

3.  That  the  property  mentioned  and  described  in  said  chattel 
mortgage  and  the  schedule  annexed  consisted  of  [describe  property 
and  where  situated] . 

4.  That  no  proceedings  have  been  had  at  law  or  otherwise  for  the 
recovery  of  said  sum  and  interest,  or  any  part  thereof,  and  the  same 
is  still  wholly  owing  and  unpaid. 


CIi.  XCIX.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  14]  1 

Wherefore,  the  plaintiff  prays  judgment:  That  the  defendant  be 
foreclosed  of  all  interest,  lien,  and  equity  of  redemption  in  said 
mortgaged  property,  to  wit,  the  said  goods  and  chattels;  that  the 
same  be  sold,  and  that  the  proceeds  thereof  be  applied  to  the  pay- 
ment of  the  costs  and  expenses  of  this  action,  and  of  counsel  fees 
not  to  exceed  the  sum  of  $  ,  and  of  the  amount  due  on  said  note 

and  mortgage,  with  interest  thereon  up  to  the  time  of  payment,  at  the 
rate  of  per  cent  per  month;  that  the  defendant  be  adjudged  to 

pay  any  deficiency  that  may  remain  after  applying  all  said  money 
as  aforesaid;  and  for  such  other  and  further  relief  as  to  this  court 
may  seem  just  in  the  premises. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  809 — To  foreclose   chattel   mortgage  for  default   in   making   pay- 
ments   of    instalments,    and    praying    for    appointment    of 
receiver. 
[In  John  Breuner  Co.  v.  King,  9  Cal.  App.  271;  98  Pac.  1077.) 
[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  [Averment  of  incorporation  of  plaintiff.] 

2.  That  on  the  31st  day  of  August,  1903,  the  defendant  made  and 
executed  her  certain  promissory  note,  in  writing,  in  the  words  and 
figures  following:  [Here  is  printed  copy  of  the  note  providing  for 
monthly  instalment  payments],  whereby  she  promised  to  pay  to 
plaintiff  the  sum  of  $18,500,  with  interest  at  six  per  cent  per  annum, 
at  the  times  end  in  the  manner  therein  specified,  in  gold  coin  of  the 
United  States,  and  then  and  there  delivered  the  said  promissory  note 
to  the  plaintiff. 

3.  That  at  the  time  and  place  aforesaid,  in  order  to  secure  the 
payment  of  the  said  promissory  note,  the  defendant  executed  and 
delivered  to  the  plaintiff  her  said  instrument  in  writing,  known  as  a 
chattel  mortgage,  a  copy  of  which  is  hereto  annexed  marked  ''Ex- 
hibit A,"1  and  is  hereby  made  a  part  hereof,  which  said  chattel 

i  It  is  provided  in  the  mortgage  annexed  as  an  exhibit  to  this  complaint  that 
upon  default  of  the  maker  of  the  note  in  the  payment  of  any  instalment  provided 
therein  the  mortgagee  may  take  possession  of  the  mortgaged  property,  "and  may 
immediately  proceed  to  foreclose  this  mortgage  by  action,  and  obtain  a  decree 
for  the  sa?s  of  the  said  mortgaged  property  and  the  application  of  the  proceeds 
to  pay  the  whole  amount  of  principal  and  interest  specified  in  said  promissory 
note,"   etc. 


1^12  CHATTEL  MORTGAGES  AND  PLEDGES.  [Tit.  XII. 

mortgage  was  made  and  given  in  good  faith  for  the  purpose  afore- 
said, without  intent  to  defraud  creditors  or  purchasers,  and  was  veri- 
fied, acknowledged,  and  recorded  pursuant  to  the  statute  in  such 
cases  made  and  provided. 

4.  That  the  property  mentioned  and  described  in  said  chattel 
mortgage  consisted  and  consists  of  all  the  furniture,  upholstery,  car- 
pets, draperies,  chinaware,  and  other  household  goods  of  every  kind, 
located  and  contained  in  and  about  that  certain  building  in  said  city 
and  county  of  San  Francisco  known  as  the  Haddon  Hall  Apartment 
House,  and  also  known  as  No.  951  Eddy  Street,  said  building  being 
situated  upon  the  lot  on  the  south  side  of  Eddy  Street,  68  feet  9 
inches  front  by  120  feet  deep,  and  commencing  137%  feet  easterly 
from  southeast  corner  of  Gough  and  Eddy  streets.2 

5.  That  default  has  been  made  by  defendant  in  the  payment  of 
the  three  several  instalments,  or  sums  of  $200  each,  which  became 
due  and  payable  on  the  1st  day  of  January,  1904,  the  1st  day  of 
February,  1904,  and  the  1st  day  of  March,  1904,  respectively,  with 
the  interest  thereon,  and  the  sum  of  $17,900  is  now  wholly  due  and 
unpaid  by  the  defendant  to  the  plaintiff,  with  interest  thereon  at  the 
rate  of  six  per  cent  per  annum  from  August  31,  1903. 

6.  That  no  proceedings  have  been  had  at  law  or  otherwise  for  the 
recovery  of  said  sum  of  $17,900  and  interest,  or  any  part  thereof. 

Wherefore,  the  plaintiff  prays  judgment : 

(a)  That  the  defendant  be  foreclosed  of  all  interest,  lien,  and 
equity  of  redemption  of  said  mortgaged  property,  to  wit,  the  said 
goods  and  chattels. 

(b)  That  the  same  may  be  sold  by  a  commissioner,  to  be  appointed 
by  the  court,  and  that  the  proceeds  thereof  be  applied  to  the  pay- 
ment of  the  costs  and  expenses  of  this  action,  and  of  counsel  fees,  to 
be  fixed  by  the  court,  and  of  said  sale,  and  of  the  amount  due  on 
said  promissory  note  and  mortgage,  with  interest  thereon  at  the  rate 
aforesaid  up  to  the  time  of  payment. 

2  The  description  in  this  complaint  of  the  property  under  mortgage  is  sufficient, 
and  it  was  not  error  to  overrule  a  demurrer  to  the  complaint  upon  the  ground 
that  the  complaint  was  uncertain  in  respect  to  such  description.  The  rule  as  to 
the  description  of  personal  property  in  chattel  mortgages  is  thus  stated:  "As 
against  third  parties,  the  mortgage  must  point  out  the  subject-matter  so  that  the 
third  person  may  identify  the  property  covered  by  the  aid  of  such  inquiries  as  the 
instrument  itself  suggests.  But,  between  the  parties,  it  is  only  necessary  to 
identify  the  chattels  so  that  the  mortgagee  may  see  with  a  reasonable  degree  of 
certainty  what  property  is  subject  to  his  lien":  John  Breuner  Co.  v.  King,  9  Cal. 
App.   271,  98  Pac.  1077,  1078,  quoting  rule  as  stated  in  6  Cyc,  p.   1022. 


Ch.  XCJX.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1413 

(c)  For  the  appointment  of  a  receiver. 

(d)  And  that  the  defendant  be  adjudged  to  pay  any  deficiency 
that  may  remain  after  applying  the  proceeds  of  sale  as  aforesaid. 

(e)  And  for  such  other  and  further  relief  as  to  the  court  may 

seem  just  in  the  premises.  -r,.  ,      „   ~.  , 

Rigby  &  Rigby, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  810 — For  foreclosure  of  pledge. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  in  consideration  of  the 
loan  of  $  of  that  date  by  the  plaintiff  to  the  defendant,  to  be 
repaid  on  the  day  of  ,  19  ,  the  defendant,  as  a  pledge  to 
secure  the  repayment  of  the  same,  delivered  to  the  plaintiff  the  fol- 
lowing property:  [Describing  it]  ;  and  the  same  is  in  the  possession 
of  the  plaintiff. 

2.  That  the  said  debt  has  become  due,  but  the  defendant  has  not 
paid  the  same  nor  any  part  thereof,  and  defendant  is  indebted  to  the 
plaintiff  thereon  in  the  sum  of  $ 

Wherefore,  the  plaintiff  prays  judgment  that  said  property  may 
be  ordered  to  be  sold,  and  the  proceeds  thereof  applied  to  the  pay- 
ment of  said  indebtedness,  and  execution  awarded  for  the  balance. 

r  T    .„  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  811 — To  recover  for  loss  of  pledge. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
delivered  to  the  defendant  [designate  thing  delivered],  the  property 
of  the  plaintiff,  of  the  value  of  $  ,  by  way  of  pledge,  and  as 
security  for  the  loan  of  $  ,  then  and  there  loaned  by  the 
defendant  to  the  plaintiff,  and  in  consideration  of  interest  thereon 
to  be  paid;  that  said  loan  was  to  be  repaid  within  days,  in 
default  of  which  said  [goods]  were  to  be  sold  by  the  defendant. 

2.  That  the  defendant  negligently  failed  to  take  due  and  proper 
care  of  said  [goods],  whereby  the  same  were  lost  [or  the  defendant 

Jury's  PI.— 90. 


1414  CHATTEL  MORTGAGES  AND  PLEDGES.  [Tit.  Xll. 

wrongfully  sold  said  goods  before  the  said  day  for  the  repayment  of 
said  loan]. 

3.  That  on  the  day  of  ,  19     ,  the  plaintiff  tendered  to 

defendant  the  said  amount  so  borrowed,  with  interest  thereon,  to 
wit,  $  ,  and  demanded  a  redelivery  of  said  [goods],  which  was 

refused,  and  said  [goods]  have  not  been  returned  to  the  plaintiff,  to 
his  damage  in  the  sum  of  $ 

[Concluding  part.] 


FORM   No.  812 — To  recover  for  injury  to  pledge. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [As  in  preceding  form.] 

2.  That  the  defendant  negligently  failed  to  take  due  and  proper 
care  of  said  [pledge],  whereby  the  same  was  greatly  damaged  [state 
the  injury],  and  was  rendered  of  small  value  to  the  plaintiff,  to  his. 
damage  in  the  sum  of  $  e 

[Concluding  part.] 

FORM   No.  813 — By  pledgeor  of  note  as  collateral,  against  pledgee. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  indebted 
to  the  defendant  in  the  sum  of  $  ,  and  delivered  to  the  defend- 
ant, as  collateral  security  for  the  payment  of  the  same,  a  promissory 
note  made  by  one  L.  M.  for  $  ,  bearing  date  on  the  day 
of            ,  19     ,  and  payable  at            months  after  its  date. 

2.  That  at  ifg  maturity  the  said  note  was  collected  by  the  defend- 
ant, and  by  the  application  of  the  moneys  so  received  by  him  said 
indebtedness  was  wholly  paid  and  extinguished. 

3.  That  after  payment  of  said  indebtedness  there  remained  in  the 
hands  of  tire  defendant  a  balance  of  $  belonging  to  this  plaint- 
iff, payment  of  which  the  plaintiff  demanded  of  the  defendant  on 
the  day  of  ,  19  ,  but  defendant  has  not  paid  the  same, 
or  any  part  thereof. 

[Concluding  part.] 


Ch.  XCIX.]  JUDGMENT   [OR  DECREE].— FORMS.  1415 

FORM  No.  814 — For  an  accounting  concerning  pledged  goods,  and  for  an 
injunction  restraining  the  sale  of  goods  where  the  amount 
due  is  in  dispute. 

(In  Castoriano  v.  Dupe,  145  N.  Y.  250;  39  N.  E.  1065.) 

[Title  of  court  and  cause.] 

That  on  the  day  of  ,  19     ,  plaintiff  executed  a  bill  of 

sale  absolute  on  its  face  of  certain  embroideries  and  delivered  it  to 
defendant  as  collateral  security  for  a  debt  owing  to  him;  that  the 
amount  of  the  debt  was  by  agreement  to  have  been  determined  at 
the  date  of  the  transfer,  but  was  left,  and  still  remains,  undeter- 
mined; that  the  defendant  claims  to  hold  the  goods  as  absolute 
owner,  and  asserts  a  liability  on  the  part  of  plaintiff  for  sums  not  in 
truth  due  and  owing;  that  an  accounting  is  needed  to  ascertain  the 
true  amount  of  the  debt  which  plaintiff  must  pay  in  order  to  redeem 
his  property;  that  said  embroideries  are  of  a  peculiar  character, 
whose  value  can  only  be  reached  by  private  sales  to  a  narrow  range 
of  purchasers,  and  which  would  be  sacrificed  by  a  sale  at  public  auc- 
tion; that  plaintiff  has  tendered  to  defendant  the  sum  of  $1,800  to 
redeem  the  pledged  goods,  which  the  defendant  has  refused,  and  has 
advertised  the  property  for  sale ;  that  the  plaintiff  is  ready  and  will- 
ing to  pay  whatever  sum  may  be  adjudged  to  be  due  from  him  in 
order  to  redeem  the  pledged  goods. 

Plaintiff  prays  judgment :  That  said  bill  of  sale  be  declared  to  be 
collateral  to  the  debt  due  to  the  defendant ;  that  an  accounting  be 
had  to  settle  the  amount  of  that  debt ;  that  upon  its  payment  the 
defendant  be  required  to  restore  the  goods;  and  that  an  injunction 
issue  in  the  meantime  restraining  the  sale  [etc.]. 

A.  B.,  Attorney  for  plaintiff. 

§351.     JUDGMENT   [OR    DECREE]. 

FORM  No.  815 — On  foreclosure  of  chattel  mortgage  and  order  of  sale,  and 
appointing  commissioner. 

(In  John  Breuner  Co.  v.  King,  9  Cal.  App.  271;  98  Pac.  1077.) 

[Title  of  court  and  cause.] 

[After  recitals  as  to  appearance  of  parties,  hearing,  submission 
and  filing  of  findings,  and  enumeration  of  certain  of  the  findings 
showing  plaintiff's  right:] 

Now,  therefore,  it  is  hereby  ordered,  adjudged,  and  decreed,  that 
"\Yi]liain  J.  Ferguson,  of  the  city  and  county  of  San  Francisco,  furni- 


1416  CHATTEL  MORTGAGES  AND  PLEDGES.  [Tit.  XII. 

ture-salesman,  be  and  he  is  hereby  appointed  a  commissioner  to  sell 
the  encumbered  property;  and  it  is  further  ordered,  that  before 
entering  upon  his  duties  as  such  commissioner  he  shall  take  the  oath 
and  given  an  undertaking  in  the  sum  of  $1,000,  as  required  by  law. 
The  sum  of  $10  is  hereby  fixed  as  the  compensation  of  such  commis- 
sioner. 

It  is  adjudged  and  decreed,  that  all  and  singular  the  mortgaged 
property  mentioned  in  the  said  complaint,  and  hereinafter  described, 
or  so  much  thereof  as  may  be  sufficient  to  raise  the  amount  due  to 
the  plaintiff  for  the  principal  and  interest  and  costs  of  this  suit,  and 
expenses  of  sale,  be  sold  by  the  said  commissioner  in  the  manner  pre- 
scribed by  law  for  the  sale  of  like  property  by  the  sheriff  upon  exe- 
cution, and  according  to  the  course  and  practice  of  this  court,  and 
the  plaintiff  may  become  the  purchaser  at  such  sale  of  any  of  said 
property;  that  the  said  commissioner,  out  of  the  proceeds  of  said 
sale,  retain  his  fees,  disbursements,  and  commissions  on  said  sale, 
and  pay  to  the  plaintiff  or  to  its  attorneys  out  of  said  proceeds  the 
sum  of  $8.50  and  $250,  costs  and  counsel  fees  of  this  suit;  also,  pay  to 
the  plaintiff  the  further  sum  of  $18,616,  the  amount  so  found  due  as 
aforesaid,  together  with  interest  thereon  at  the  rate  of  six  per  cent 
per  annum  from  the  date  of  this  decree,  or  so  much  thereof  as  the 
said  proceeds  of  sale  will  pay  of  the  same;  that  the  defendant,  and 
all  persons  claiming  or  to  claim  from  or  under  her,  and  all  persons 
having  liens  subsequent  to  said  mortgage  upon  the  property  de- 
scribed in  said  mortgage,  and  their  personal  representatives,  be  for- 
ever barred  and  foreclosed  of  and  from  all  equity  of  redemption 
and  claim  of,  in,  and  to  said  mortgaged  property  and  every  part  and 
parcel  thereof. 

And  it  is  further  adjudged  and  decreed,  that  if  the  moneys  arising 
from  the  said  sale  shall  be  insufficient  to  pay  the  amount  so  found 
due  the  plaintiff  as  above  stated,  with  interest  and  costs  and  expenses 
of  sale  as  aforesaid,  the  said  commissioner  shall  specify  the  amount 
of  such  deficiency  and  balance  due  to  plaintiff  in  his  return  of 
said  sale ;  and  that  on  the  coming  in  and  filing  of  said  return  the 
clerk  of  this  court  docket  a  judgment  for  such  balance  against  the 
defendant,  and  that  the  defendant  pay  to  the  plaintiff  the  amount  of 
such  deficiency  and  judgment,  with  interest  thereon  at  the  rate  of 
six  per  cent  per  annum  from  the  date  of  said  last-mentioned  return 
and  judgment,  and  that  the  plaintiff  have  execution  therefor. 


Ch.  XCIX.] 


ANNOTATIONS. 


1417 


The  property  directed  to  be  sold  by  this  decree  is  all  the  furniture, 
upholstery,  carpets,  draperies,  chinaware,  and  other  household  goods 
of  every  kind,  located  and  contained,  on  the  31st  day  of  August,  1903, 
in  and  about  that  certain  building  in  said  city  and  county  of  San 
Francisco  known  as  the  Haddon  Hall  Apartment  House,  and  also 
known  as  No.  951  Eddy  Street,  said  building  being  situated  on  a  lot 
on  the  south  side  of  said  Eddy  Street  [here  particularly  described]. 

Done  in  open  court,  this  3d  day  of  October,  1904. 

John  Hunt, 
Judge  of  Superior  Court. 


§352.     ANNOTATIONS.— Liens  and  pledges. 

1.  Action  by  assignee  of  lien. 

2.  Assignee  of  debt.— Right  of,   to  foreclose  lien. 

3.  Action  by  pledgeor  in  nature  of  specific  performance. 

4.  Plea  of   tender. 

5.  Continuance  of  lien. 

6.  When   lien   is   lost. 


1.  Action  by  assignee  of  lien. — An  as- 
signee of  a  lien  may  maintain  an  action 
to  enforce  the  same:  Duncan  v.  Hawn, 
104  Cal.  10,  12,  37  Pac.  626;  McCrea  v. 
Johnson,  104  Cal.  224,  225,  37  Pac.  902; 
Clark  v.  Brown,  141  Cal.  93,  95,  74  Pac. 
548.  See  Falconio  v.  Larsen,  31  Ore. 
137,   147,  48  Pac.   703,  37  L.   R.  A.  254. 

2.  Assignee  of  debt. — Right  of,  to  fore- 
close lien. — The  assignee  of  a  chose  in 
action  may  maintain  an  action  thereon, 
and  where  the  right  assigned  carries  a 
lien  may  foreclosure  the  latter:  Dun- 
can v.  Hawn,  104  Cal.  10,  12,  37  Pac. 
626,  distinguishing  Mills  v.  La  Verne 
L.  Co.,  97  Cal.  254,  32  Pac.  169,  33  Am. 
St.  Rep.  16S;  McCrea  v.  Johnson,  104 
Cal.  224,  225,  37  Pac.  902.  See  Tuttle 
v.  Howe,  14  Minn.  145,  150,  100  Am. 
Dec.  205;  Rogers  v.  Omaha  Hotel  Co., 
4  Neb.  54,  57;  Skyrme  v.  Occidental  M. 
etc.  Co.,  8  Nev.  219;  Falconio  v.  Larsen, 
31  Ore.  137,  147,  48  Pac.  703,  37  L.  R.  A. 
254;  Iage  v.  Bossieux,  15  Grat.  (Va.) 
83,  76  Am.  Dec.  189;  Davis  v.  Bilsland, 
85  U.   S.    (18  Wall.)    659,   21  L.   ed.   969. 

3.  Action  by  pledgeor  in  nature  of 
specific  performance. — A  pledgeor  of 
stock  may  maintain  action  in  the  nature 
of  specific  performance  to  compel 
pledgee  to  return  stock  when  it  is  of 
unceitain   value   and   has    no   known    or 


fixed   market  value:     Krouse  v.   Wood- 
ward, 110  Cal.  638,  643,  42  Pac.  1084. 

4.  Plea  of  tender  of  money  due  on  a 
pledge  is  sufficient  without  bringing  the 
money  into  court:  Loughborough  v. 
McNevin,  74  Cal.  250,  255,  14  Pac.  369, 
15  Pac.  773,  5  Am.  St.  Rep  435.  See 
Kortright  v.  Cady,  21  N.  Y.  343,  354, 
366,   78  Am.   Dec.   145. 

5.  Continuance  of  lien. — A  lien  is  not 
extinguished  so  long  as  the  indebted- 
ness is  kept  alive,  or  so  long  as  an 
action  can  be  brought  to  recover  the 
debt:  Henderson  v.  Grammar,  66  Cal. 
332,  336,  5  Pac.  488;  London  etc.  Bank 
v.  Bandmann,  120  Cal.  220,  222,  52  Pac. 
5S3,  65  Am.  St.  Rep.  179;  Mutual  L.  Ins. 
Co.  v.  Pacific  F.  Co.,  142  Cal.  477,  76 
Pac.  67,  70.  See  London  etc.  Bank  v. 
Dexter  H.  &  Co.,  126  Fed.  593,  603,  61 
C.    C.   A.   515. 

6.  When  lien  is  lost.— A  lien  is  abso- 
lutely lost  where,  on  having  such  lien, 
a  party  is  sued  in  replevin  and  answers 
claiming  absolute  ownership:  Williams 
v.  Ashe,  111  Cal.  180,  185,  43  Pac.  595. 
See  Mexal  v.  Dearborn,  78  Mass.  (12 
Gray)  336;  Ballard  v.  Burgett,  40  N.  Y. 
314;  Maynard  v.  Anderson,  54  N.  Y. 
642;  Tuthill  v.  Skidmore,  124  N.  Y.  148, 
155,  26  N.  E.  348;  Everett  v.  Saltus,  15 
Wend.    474. 


1418  ACTIONS    UPON    BONDS,    ETC.  LTil.  XII. 

CHAPTER   C. 

Bonds  and  Undertakings,  and  Actions  Thereon. 

Page 

§  353.  Form  of  bonds,  endorsements,  etc 1418 

Form  No.  816.  Official  bond.      (Common  form.)... 1418 

Form  No.  S17.  Official  bond  of  city  clerk 1419 

Form  No.  818.  Approval  of  bond,  endorsed  thereon 1420 

Form  No.  819.  Oath  of  officer  on  qualifying 1420 

Form  No.  820.  Exception  to  sureties  on   [bail]   bond 1420 

Form  No.  821.  Notice    of    justification    of    sureties    on    [bail]' 

bond 1421 

§  354.  Forms  of  procedure  where  leave  to  sue  an  officer  of  the  court 

must  first  be  obtained 1421 

Form  No.  822.  Petition  for  permission  to  bring  an  action  upon 

the  bond  of  an  executor  [or  administrator]  1421 
Form  No.  823.  Order  granting  leave  to  sue  on  the  bond  of  an 

executor  [or  administrator] 1422 

§  355.  Complaints    [or  petitions] 1422 

Form  No.  824.  On  bond    for    the    unconditional    payment    of 

money.     (Common  form.)    1422 

Form  No.  825.  By  surviving  obligee  on  joint  bond 1423 

Form  No.  826.  On  bond  other  than  for  payment  of  money 1423 

Form  No.  827.  On  bond  for  the  fidelity  of  an  employee 1423 

Form  No.  828.  Against  surety  company  on  appeal  bond 1424 

Form  No.  829.  Undertaking  entered  into  by  surety  company  on 
appeal  from  justice  court  from  judgment 
directing  payment  of  money.     (Exhibit  A  to 

form  No.  828)   1425 

Form  No.  830.  On  appeal  bond  given  in  forcible  entry  and  de- 
tainer proceedings   1426 

Form  No.  831.  On  bond  given  in  replevin  1427 

Form  No.  832.  On  supersedeas  bond  1429 

§  356.  Answer  . 1430 

Form  No.  833.  Defense  of  failure  of  consideration 1430 

§  357.  Annotations    1430 


§353.     FORMS  OF  BONDS,  ENDORSEMENTS,  ETC. 
FORM   No.  816 — Official  bond.     (Common  form.) 

Know  all  men  by  these  presents,  that  we,  as  principal,  and 

and  ,  as  sureties,  are  held  and  firmly  bound  unto  the 

state  of  ,  in  the  following  penal  sums,  to  wit,  the  said  princi- 

pal in  the  sum  of  $  ,  and  the  said  ,  surety,  in  the  penal 


I'll.  C]  BONDS,   ETC.— FORMS.  1419 

sum  of  $  ,  and  the  said  ,  surety,  in  the  penal  sum  of 

$  ,  lawful  moneys  of  the  United  States  of  America,  for  the 

payment  of  which  well  and  truly  to  be  made  we  bind  ourselves,  our 
heirs,  executors,  and  administrators,  jointly  and  severally,  firmly  by 
these  presents. 

The  condition  of  the  above  obligation  is  such  that  whereas  the 
above  bounden  principal  was,  by  His  Excellency  the  Governor  of  the 
state  of  ,  duly  appointed  notary  public  [etc.,  giving  date  there- 

of,] in  and  for  the  county  of  ,  in  said  state. 

Now,  therefore,  if  the  said  bounden  shall  well  and  faith- 

fully perform  all  the  duties  of  his  office  as  required  by  law,  and  shall 
pay  over  all  moneys  that  may  come  into  his  hands,  in  pursuance  of 
the  requirements  of  the  statutes  of  said  state,  and  shall  faithfully 
execute  and  perform  all  the  duties  of  such  office  required  by  any  law 
to  be  enacted  subsequently  to  the  execution  of  this  bond,  then  this 
obligation  is  to  be  void  and  of  no  effect ;  otherwise,  to  be  and  remain 
in  full  force  and  virtue. 

Witness  our  hands  and  seals,  this  day  of  ,  19     . 

[Principal.]       [Seal.] 
[Surety.]  [Seal.] 

[Surety.]  [Seal.] 

[Followed  by  oath  of  sureties  as  in  form  No.  1028.] 

FORM    No.  817 — Official   bond  of  city  clerk. 

(In  Lowe  v.  City  of  Guthrie,  4  Okla.  287;  44  Pac.  198.) 
Territory  of  Oklahoma, 


ss 
County  of  Logan. 

Know  all  men  by  these  presents,  that  E.  G.  Millikan,  as  principal, 
and  John  F.  Stone,  Lowe  &  Huston,  and  0.  R.  Fegan,  as  sureties,  are 
held  and  firmly  bound  unto  the  city  of  Guthrie  and  territory  of 
Oklahoma  in  the  sum  of  $1,000,  for  the  payment  of  which  we  bind 
ourselves,  our  heirs,  executors,  and  administrators. 

The  condition  of  the  above  obligation  is  that  whereas  the  above- 
named  E.  G.  Millikan  has  been  elected  city  clerk  in  and  for  the  city 
of  Guthrie:  Now,  if  the  said  E.  G.  Millikan  shall  render  a  true 
account  of  his  office  and  of  his  duties  therein  to  the  proper  authority, 
when  required  thereby  or  by  law,  and  shall  promptly  pay  over  to  the 
person  or  officer  entitled  thereto  all  moneys  which  may  come  into  his 
hands  by  virtue  of  his  said  office,  and  faithfully  account  for  all  the 


1420  ACTIONS    UPON    BONDS,    ETC.  [Tit.  XII. 

balances  of  money  remaining  in  his  hands  at  the  termination  of  his 
office,  and  shall  hereafter  exercise  all  reasonable  diligence  and  care 
in  the  preservation  and  lawful  disposal  of  all  money,  books,  papers, 
and  securities,  or  other  property,  appertaining  to  his  said  office,  and 
deliver  them  to  his  successor,  or  to  any  person  authorized  to  receive 
the  same,  and  if  he  shall  faithfully  and  impartially,  without  fear, 
favor,  fraud,  or  oppression,  discharge  all  the  other  duties  now  or 
hereafter  required  of  his  office  by  law,  then  this  bond  to  be  void; 
otherwise,  in  full  force. 

Signed  this  16th  day  of  April,  1892. 

E.  G.  Millikan.  [Seal.] 

John  F.  Stone.  [Seal.] 

Lowe  &  Huston  [by  ].     [Seal.] 

0.  R.  Fegan.  [Seal.] 

FORM   No.  818 — Approval  of  bond,  endorsed  thereon. 
I  approve  the  form  and  sufficiency  of  the  within  bond. 
Witness  my  hand,  this  day  of  ,  19     . 

S.  T.,  Judge. 
[Endorsement  of  filing  and  record.] 


FORM   No.  819— Oath  of  officer  on  qualifying. 

[Title  of  court  and  cause.] 
State  of  ,  ") 

County  of  .  j 

I  do  solemnly  swear  that  I  will  support  the  constitution  of  the 
United  States  and  the  constitution  of  the  state  of  ,  and  that  I 

will  faithfully  discharge  the  duties  of  according  to  the  best  of 

my  ability.    So  help  me  God.  [Signature.] 

[Jurat  of  clerk  or  notary.] 

[Seal.] 

FORM   No.  820— Exception  to  sureties  on  [bail]  bond. 

[Title  of  court  and  cause.] 

To  the  sheriff  of  County : 

You  will  take  notice,  that  the  plaintiff  in  the  action  excepts  to 
the  sufficiency  of  the  sureties  on  the  [bail]  bond  given  by  the  defend- 
ant in  this  action,  and  does  not  accept  said  bond. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 


Cfa.  C.J  BONDS,  ETC.— FORMS.  1421 

FORM  No.  821 — Notice  of  justification  of  sureties  on  [bail]  bond. 

[Title  of  court  and  cause.] 

You  will  take  notice,  that  the  sureties  on  the  undertaking  of  [bail] 
of  ,  the  defendant  in  this  action,  or  ,  residence  , 

occupation  ,  and  ,  residence  ,  occupation  ,  as 

sureties  on  the  undertaking  of  [bail]  herein,  will  justify  as  such 
sureties  on  the  day  of  before  the  Hon.  ,  judge  of 

said  court,   [or  before  ,  Esq.,  county  clerk  of  said  county  of 

,]  at  ,  and  at  o'clock  M.,  of  that  day. 

[Date.]  M.  N.,  Sheriff. 

[or  ,  defendant.] 

To  A.  B.,  Attorney  for  plaintiff. 

§354.  FORMS  OF  PROCEDURE  WHERE  LEAVE  TO  SUE  AN  OFFICER 
OF  THE  COURT  MUST  FIRST  BE  OBTAINED. 

FORM  No.  822 — Petition  for  permission  to  bring  an  action  upon  the  bond 
of  an  executor  [or  administrator].! 

[Title  of  court  and  cause.] 

To  the  Hon.  ,  judge  of  said  court : 

The  petition  of  ,  of  ,  respectfully  shows  to  the  court 

that  he  is  a  creditor  [or  legatee,  or  next  of  kin]  of  ,  deceased, 

whose  estate  is  now  in  course  of  administration  in  said  court;  that 
,  the  executor  [or  administrator]  of  said  estate,  was  by  an 
order  duly  given  and  made  by  this  court  on  the  day  of  , 

19  ,  ordered  and  directed  to  pay  the  debts  and  legacies  of  said 
deceased  [or  the  distributive  shares  of  said  estate  which  the  next  of 
kin  of  said  deceased  are  entitled  by  law  to  receive],  and  among  said 
debts  [or  legacies,  or  distributive  shares]  the  said  executor  [or 
administrator]  was  ordered  and  adjudged  to  pay  to  your  petitioner 
the  sum  of  $ 

That  on  the  day  of  ,  19     ,  your  petitioner  demanded  of 

said  executor  [or  administrator]  payment  of  his  said  claim  [or 
legacy,  or  distributive  share  of  such  estate],  but  said  executor  [or 
administrator]  has  refused,  and  still  refuses,  to  pay  the  same  or  any 
part  thereof,  although  he  has  moneys  and  effects  of  said  estate  in  his 

i  In  North  Dakota,  leave  of  court  must  be  obtained  before  bringing  suit  on  an 
executor's  bond:  N.  Dak.  Rev.  Codes,  §  6468.  In  Nebraska,  before  action  can  be 
brought  for  maladministration  on  a  probate  bond,  leave  of  court  must  be  obtained: 
Cobbey's  Ann.  Stats,  of  Neb.,  §  5163. 


1422  ACTIONS    UPON    BONDS,    ETC.  [Tit.  XII. 

hands  sufficient  to  pay  the  same.     [Or  state  any  other  cause  of  action 
existing  and  upon  which  permission  is  desired  to  sue.] 

Wherefore,  your  petitioner  prays  that  he  be  permitted  to  bring  an 
action  upon  the  bond  of  the  said  executor  [or  administrator]  against 
him  and  his  sureties  thereon. 

[Petitioner.] 

[Verification.]  By  A.  B.,  Attorney  for  petitioner. 

FORM   No.  823 — Order   granting    leave  to   sue   on   the    bond   of   an    executor 
[or  administrator]. 

[Title  of  court  and  cause.] 

Upon  reading  and  filing  the  petition  of  ,  praying  for  permis- 

sion to  bring  action  in  his  own  behalf  upon  the  bond  of  , 

executor  of  the  last  will  and  testament  [or  administrator  of  the 
estate]  of  ,  deceased,  and  it  appearing  from  said  petition  that 

good  grounds  exist  for  the  commencement  of  such  action : 

It  is  ordered,  that  permission  be  and  the  same  is  hereby  granted  to 
said  to  bring  an  action  on  said  bond  against  the  said  executor 

[or  administrator]  and  the  sureties  upon  such  bond,  in  the  name  of 
the  said  petitioner  as  plaintiff,  according  to  the  prayer  of  said  peti- 
tion. 

[Date.]  By  the  court: 

S.  T„  Judge. 

For  petition  for  leave  to  sue  a  receiver,  orders,  etc.,  see  chapter  CXXV. 

§355.     COMPLAINTS   [OR  PETITIONS]. 

FORM   No.  824 — On   bond  for  the  unconditional   payment  of  money.     (Com- 
mon form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
covenanted  in  writing  with  the  plaintiff  to  pay  to  the  plaintiff  the 
sum  of  $ 

2.  That  said  sum  has  not  been  paid,  nor  any  part  thereof ;  that  the 
whole  thereof  remains  due  and  payable  from  the  defendant  to  the 
plaintiff. 

[Concluding  part.] 


Ch.  C]  COMPLAINTS   [OR   PETITIONS].— FORMS.  142:j 

FORM   No.  825 — By  surviving  obligee  on  joint  bond. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
covenanted  with  the  plaintiff  and  one  C.  D.,  under  his  hand  and  seal, 
to  pay  them  the  sum  of  $             ,  on  the             day  of  ,  19     . 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  said  C.  D. 
died. 

3.  [Same  as  paragraph  2,  in  preceding  form.] 
[Concluding  part.] 

FORM    No.  826 — On  bond  other  than  for  payment  of  money. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  defendant  executed 
to  the  plaintiff  his  bond  or  writing  obligatory,  sealed  with  his  seal, 
a  copy  of  which  is  here  set  forth,  to  wit:    [Set  out  copy.] 

2.  [State  the  breach.] 

3.  [Same  as  paragraph  2,  form  No.  824.] 
[Concluding  part.] 

FORM   No.  827 — On  bond  for  the  fidelity  of  an  employee. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  [Aver  incorporation  of  defendant,  if  a  surety  company  or  other 
corporation.] 

2.  That  on  the  day  of  ,  19  ,  plaintiff  was  about  to 
employ  a  clerk,  and  thereafter,  and  on  the  same  day,  the  defendant, 
as  a  material  consideration  for  the  employment  by  plaintiff  of 

as  such  clerk,  made  and  delivered  to  plaintiff  its  bond,  which  bond  is 
in  the  words  and  figures  following,  to  wit:  [Here  insert  copy,  or 
annex  and  refer  to  the  same  as  an  exhibit.] 

3.  That  in  consideration  of  the  making  and  delivery  of  said  bond, 
plaintiff  on  the  day  of  ,  19  ,  employed  as  such 
clerk  in  said  bond  mentioned,  and  he  thereupon  entered  into  the 
employment  of  plaintiff  as  such  clerk. 

3.  That  while  said  was  so  in  the  employment  of  plaintiff  as 

such  clerk  between  the  day  of  ,  19     ,  and  the  day 


1421  ACTIONS    UPON    BONDS,    ETC.  [Tit.  XII. 

of  ,  19     ,  he,  said  ,  converted  $  in  money  and  cer- 

tain goods  and  merchandise,  to  wit,  [here  describe],  of  the  value  of 
$  ,  to  his  own  use,  and  against  the  will  and  without  the  con- 

sent of  the  plaintiff. 

4.  That  said  never  accounted  to  plaintiff  for  said  goods  and 

property,  nor  any  part  thereof,  nor  delivered  to  plaintiff  said  prop- 
erty so  converted  by  him  to  his  own  use,  nor  any  part  thereof,  to 
plaintiff's  damage  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  $  ,  and  plaintiff's  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  828 — Against  surety  company  on  appeal  bond. 

(Adapted  from  Nolan  v.  Fidelity  and  Deposit  Co.  of  Maryland,  2 
Cal.  App.  1;  82Pac.  1119.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  the  defendant  is  a  foreign  corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  state  of  Maryland, 
for  the  purpose  of  acting  as  surety  on  bonds  and  undertakings 
required  in  regular  proceedings,  and  during  all  the  times  herein  men- 
tioned has  been,  and  it  now  is,  conducting  said  business  in  the  city 
and  county  of  San  Francisco. 

2.  That  on  the  10th  day  of  March,  1902,  judgment  was  duly  given, 
made,  and  rendered  by  the  justice  court  of  the  city  and  county  of 
San  Francisco,  state  of  California,  in  favor  of  the  above-named 
plaintiff  and  against  the  Pacific  Debenture  Company,  a  corporation, 
for  the  sum  of  $299,  and  $7  costs  of  suit,  with  interest  thereon  at 
the  rate  of  seven  per  cent  per  annum  from  the  date  thereof. 

3.  That  on  or  about  the  4th  day  of  June,  1902,  the  said  Pacific 
Debenture  Company,  a  corporation,  appealed  to  the  superior  court  of 
the  city  and  county  of  San  Francisco,  state  of  California,  from  said 
judgment. 

4.  That  upon  said  appeal  the  said  defendant  made  and  filed  with 
the  clerk  of  said  justice's  court,  for  the  use  of  this  plaintiff,  its  writ- 
ten undertaking,  whereby  it  undertook,  promised,  and  acknowledged 
itself  bound  to  pay  to  plaintiff  the  amount  of  the  judgment  aforesaid, 


Ch.  C]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1425 

and  all  costs  incurred,  if  the  said  appeal  was  dismissed,  a  copy  of 
which  undertaking  is  attached  to  this  complaint  marked  "Exhibit 
A,"  and  made  part  hereof.     [See  form  No.  829.] 

5.  That  on  the  15th  day  of  July,  1902,  the  said  appeal  in  said 
action  was  dismissed  by  the  aforesaid  superior  court,  by  an  order 
duly  given  and  made  therein. 

6.  That  since  the  rendition  of  said  judgment  the  plaintiff  has 
incurred  additional  costs  in  said  action,  in  the  sum  of  $5.90. 

7.  That  said  judgment  has  not,  nor  has  any  part  thereof,  ever  been 
paid,  although  demand  therefor  has  been  heretofore  made  by 
plaintiff. 

AVherefore,  plaintiff  prays  judgment  against  defendant  for  the  sum 
of  $306,  with  interest  thereon  at  the  rate  of  seven  per  cent  per  annum 
from  the  10th  day  of  March,  1902,  and  for  the  further  sum  of  $5.90, 
increased  costs  as  aforesaid,  and  for  his  costs  and  disbursements 
herein. 

Louis  S.  Reedy,  and 
John  T.  Pidwell, 
[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  829— Undertaking  entered  into  by  surety  company  on  appeal  from 
justice  court  from  judgment  directing  payment  of  money. 
(Exhibit  A  to  complaint,  form   No.  823.) 
(In  Nolan  v.  Fidelity  etc.  Co.,  2  Cal.  App.  1;  82  Pac.  1119.) 

[Title  of  court  and  cause.] 

Whereas,  in  an  action  of  the  justice  court  of  the  city  and  county  of  San  Francisco, 
state  of  California,  judgment  was,  on  the  10th  day  of  March,  1902,  rendered  by  John 
R.  Daniels,  Esq.,  one  of  the  justices  of  said  court,  in  favor  of  the  plaintiff,  against 
the  Pacific  Debenture  Company,  defendant,  for  the  sum  of  $299,  and  $7  costs; 

And  whereas,  the  said  Pacific  Debenture  Company  is  dissatisfied  with  said  judg- 
ment, and  desirous  of  appealing  therefrom  to  the  superior  court  of  the  city  and 
county  of  San  Francisco,  state  of  California;  now,  therefore,  in  consideration  of 
the  premises,  and  of  such  appeal,  the  undersigned,  the  Fidelity  and  Deposit  Com- 
pany of  Maryland,  a  corporation,  of  the  city  and  county  of  San  Francisco,  does 
hereby  undertake  in  the  sum  of  $100,  and  promise  on  the  part  of  the  appellant, 
that  the  said  appellant  will  pay  all  costs  which  may  be  awarded  against  it  on  said 
appeal,  or  on  a  dismissal  thereof,  not  exceeding  the  aforesaid  sum  of  $100,  to  which 
it  acknowledges  itself  bound; 

And  whereas,  the  said  appellant  claims  a  stay  of  proceedings,  and  it  is  desirous 
of  staying  the  execution  of  said  judgment  so  appealed  from,  the  undersigned,  the 
Fidelity  and  Deposit  Company  of  Maryland,  does  further,  in  consideration  thereof, 
and  of  such  stay  of  proceedings,  and  of  the  premises,  undertake  and  promise  and 
does  acknowledge  itself  further  bound  in  the  further  sum  of  $612,  being  twice  the 
amount  of  said  judgment  including  costs,  that  said  appellant  will  pay  the  amount 
of  the  judgment  so  appealed  from,  and  all  costs,  if  the  appeal  be  withdrawn  or  dis- 


1426  ACTIONS    UPON    BONDS,    ETC.  [Tit.  XII. 

missed,  or  the  amount  of  any  judgment  and  all  costs  that  may  be  recovered  against 
it   in   the   action   of   said   superior  court. 
Dated,  San  Francisco,  the  8th  day  of  April,  1902. 

Fidelity  and  Deposit  Company  of  Maryland.     [Seal.] 

By  Oscar  T.  Barber,   [Seal.] 

Its    attorney-in-fact. 

Attest:     Frank  L.  Gilbert,  Agent.     [Seal.] 


FORM   No.  830 — Upon    appeal    bond    given    in    forcible    entry    and    detainer 
proceedings. 

(In  Hinckley  v.  Casey,  54  Wash.  34;  102  Pac.  1051.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  for  cause  of  action- 
al Vges: 

1.  That  on  or  about  the  1st  day  of  June,  1906,  said  T.  D.  Hinckley, 
deceased,  and  wife,  commenced  an  action  in  the  above-entitled  court 
against  said  J.  T.  Casey  and  T.  J.  Casey,  to  recover  possession  of 
certain  office  rooms,  to  wit,  rooms  412  and  413  in  the  Hinckley 
Block,  in  the  city  of  Seattle,  and  that  a  trial  was  had  in  said  action, 
and  a  verdict  rendered  by  a  jury  on  October  31,  1906;  that  there- 
after judgment  was  duly  entered  on  November  17,  1906,  upon  said 
verdict,  and  that  defendants  J.  T.  Casey  and  T.  J.  Casey  appealed 
from  said  judgment,  and,  as  a  stay-bond  pending  said  appeal,  said 
J.  T.  Casey  and  T.  J.  Casey,  as  principals,  and  P.  H.  Casey  and  A.  P. 
Casey,  as  sureties,  made,  executed,  and  filed  a  bond  conditioned 
that  they  would  pay  all  costs,  damages,  and  rents  which  said  supreme 
court  or  said  superior  court  should  adjudge  reasonable  for  the  pos- 
session of  said  rooms  during  the  determination  of  said  appeal ;  that  a 
copy  of  said  bond  is  hereto  attached  and  made  a  part  hereof,  marked 
"Exhibit  A";  that  pending  said  appeal  said  defendants  J.  T.  Casey 
and  T.  J.  Casey  continued  in  the  actual  possession  of  said  rooms  until 
March  15,  1907;  that  the  actual  rental  value  of  said  rooms  from 
October  31,  1906,  to  March  15,  1907,  was  at  the  rate  of  $50  per  month, 
being  in  all  the  sum  of  $275;  that  demand  was  made  upon  said 
defendants  to  pay  the  aforesaid  sum,  but  that  payment  has  been 
refused. 

Wherefore,  plaintiffs  demand  judgment  against  said  defendants 
and  each  of  them  in  the  sum  of  $275,  and  for  costs  and  disburse- 
ments herein,  and  that  said  judgment  so  recovered  be  doubled  in 


Ch.  C]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1427 

accordance  with  the  statute  in  such  cases  made  and  provided,  and  as 
may  be  proper  herein. 

Fred  H.  Peterson,  and 
Philip  D.  MacBride, 
[Verification.]  Attorneys  for  plaintiff. 

[Copy  of  bond  annexed.] 

FORM   No.  831 — On  bond  given  in  replevin. 

(In  Shoning  v.  Coburn,  36  Neb.  76;  54  N.  W.  84.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  for  that  on  the  day 

of  August,  1888,  Charles  W.  Mount  commenced  an  action  of  replevin 
in  the  court  of  Justice  Anderson,  a  justice  of  the  peace  of  Omaha,  in 
and  for  Douglas  County,  Nebraska,  against  the  plaintiff,  as  sheriff, 
and  took  from  plaintiff,  on  a  writ  of  replevin,  certain  specific  personal 
property  which  the  plaintiff  had  levied  upon  by  virtue  of  an  execu- 
tion issued  to  him  as  sheriff,  out  of  the  county  court  of  Douglas 
County,  Nebraska,  against  said  Charles  W.  Mount. 

2.  On  the  trial  of  said  cause  in  said  justice  court,  on  the  day 
of  August,  1888,  the  justice  found  that  the  right  of  property  and  the 
right  of  possession  were  in  this  plaintiff,  and  that  the  value  of  said 
property  was  $200,  and  judgment  was  rendered  against  said  Charles 
W.  Mount  that  this  plaintiff  have  a  return  of  said  property,  or  the 
value  thereof. 

3.  The  said  Charles  W.  Mount  did  not  return  said  property,  but 
appealed  said  case  to  the  district  court  of  Douglas  County,  and  did 
make  [and  file]  an  undertaking  to  this  plaintiff  in  the  sum  of  $420 
on  the  18th  day  of  August,  1888,  of  which  the  following  is  a  copy: 

[Bond  in  replevin.] 

State  of  Nebraska, 
Douglas   County. 

The  state  of  Nebraska,  in  the  Justice  Court. 
Charles  W.  Mount, 


William  Coburn,   Sheriff. 

Before  G.  Anderson,  a  justice  of  the  peace  for  the  fourth  precinct  of  Douglas 
County,  Nebraska. 

Whereas,  on  the  13th  day  of  August,  1888,  William  Coburn,  sheriff,  recovered  a 
judgment  against  Charles  W.  Mount,  before  Gustave  Anderson,  a  justice  of  the 
peace,  for  the  sum  of  $200,  and  costs  of  suit,  taxed  at  $  ,  and  the  said  defend- 

ant intends  to  appeal  said  cause  to  the  district  court  of  Douglas  County: 

Now,  therefore,  I,  John  P.  Shoning,  do  promise  and  undertake  to  the  said  William 
P.  Coburn,  sheriff,  in  the  sum  of  $420,  that  the  said  Charles  W.  Mount  shall  prose- 


1428  ACTIONS    UPON    BONDS,    ETC.  [Tit.  XII. 

cute  his  appeal  to  effect,  and  without  unnecessary  delay;  and  that  said  appellant,  if 
judgment  be  adjudged  against  him  on  the  appeal,  will  satisfy  such  judgment  and 
costs.  John  P.  Shoning.     [Seal.] 

Executed  in  my  presence,  and  surety  approved  by  me,  this  18th  day  of  August, 
18S8.  Gustave  Anderson, 

Justice  of  the  Peace. 

A  transcript  from  said  justice  court  was  filed  in  the  district  court 
of  Douglas  County  on  or  about  August  20,  1888,  as  will  be  seen  by- 
reference  to  docket  10,  page  6,  of  the  records  of  said  court. 

4.  On  the  trial  of  said  cause  in  said  court,  on  the  27th  day  of  June, 

1889,  the  right  of  property  and  the  right  of  possession  of  said  prop- 
erty were  found  to  be  in  the  defendant,  William  Coburn,  sheriff,  at 
the  commencement  of  said  action,  and  that  the  value  of  said  prop- 
erty was  $200,  and  the  interest  on  the  same  was  $10.40;  whereupon 
judgment  was  entered  against  the  plaintiff,  Charles  W.  Mount,  that 
the  defendant  have  a  return  of  said  property,  or  $200,  the  value 
thereof,  with  interest,  $10.40. 

5.  Said  Charles  W.  Mount  had  not  returned  nor  offered  to  return 
said  property.1 

6.  On  the  30th  day  of  December,  1889,  an  execution  was  issued  to 
the  sheriff  of  Douglas  County  on  said  judgment  against  Charles  W. 
Mount,  and  returned  wholly  unsatisfied  on  the  8th  day  of  January, 

1890.  On  the  9th  day  of  January,  1890,  an  alias  execution  was  issued 
against  said  Charles  W.  Mount  on  said  judgment,  and  returned  on 
the  5th  day  of  February,  1890,  wholly  unsatisfied. 

7.  On  or  about  the  12th  day  of  November,  1889,  John  P.  Shoning, 
defendant,  paid  $100  on  said  judgment. 

8.  The  plaintiff  has  sustained  damages  in  the  premises  in  the  sum 
of  $142.08. 

The  plaintiff  therefore  prays  judgment  against  the  defendant  for 
the  sum  of  $142.08,  with  interest  on  $210.40  from  the  13th  day  of 
May,  1889,  to  the  12th  day  of  November,  1889,  and  on  $110.40  from 
the  12th  day  of  November,  1889,  and  costs  of  this  suit. 

John  T.  Cathers, 
Attorney  for  plaintiff. 

i  A  return,  or  offer  to  return,  the  property  In  replevin  actions  is  a  matter  of 
defense;  it  is  sufficient  on  that  point  to  allege  in  the  petition  that  the  property  has 
not  been  returned:    Shoning  v.  Coburn,  36  Neb.  76,  54  N.  W.  84. 


Ch.  C]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1429 

FORM   No.  832 — On  supersedeas  bond. 

(In  Walburn  v.  Chenault,  43  Kan.  352;  23  Pac.  657.) 

[Title  of  court  and  cause.] 

The  plaintiff,  for  a  cause  of  action  against  the  defendants,  A.  W. 
and  C.  D.,  alleges : 

1.  That  at  the  regular  term  of  this  court,  in  1885,  on  the  5th 
day  of  October,  1885,  in  a  case  pending  in  the  district  court  of 
County,  state  of  Kansas,  wherein  E.  F.  was  plaintiff  and  the  St.  L.  R. 
Co.  was  defendant,  the  said  E.  F.  recovered  a  judgment  against  the 
St.  L.  R.  Co.  for  the  sum  of  $  and  the  costs  of  suit,  amounting 
to  $ 

2.  That  afterwards  the  St.  L.  R.  Co.  took  the  case  to  the  supreme 
court  of  the  state  of  Kansas  upon  proceedings  in  error,  and  filed  a 
supersedeas  bond  or  undertaking  in  said  district  court,  as  provided 
by  law  in  such  cases,  to  secure  the  payment  of  said  judgment,  inter- 
est, and  costs,  should  the  same  be  affirmed  in  said  proceedings  in 
error  in  the  supreme  court,  upon  which  undertaking  defendants, 
A.  W.  and  C.  D.,  were  sureties  for  said  railroad  company.  A  copy 
of  such  undertaking  is  hereto  annexed,  marked  "Exhibit  A,"  and 
made  part  hereof. 

3.  That  afterwards,  for  a  valuable  consideration,  the  said  E.  V. 
assigned  and  transferred  the  said  judgment  and  said  undertaking  to 
this  plaintiff,  who  is  now  the  legal  owner  and  holder  thereof;  that  in 
the  supreme  court  such  proceedings  were  had  that  said  judgment 
was  affirmed  by  said  supreme  court,  and  the  liability  of  said  defend- 
ants thereby  accrued  upon  said  undertaking  for  the  payment  of  said 
judgment,  interest,  and  costs;  that  these  defendants  and  the  railroad 
company  refused  to  pay  said  judgment,  interest,  and  costs,  or  any 
part  thereof;  that  of  the  said  judgment  the  sum  of  $  bears 
interest  at  the  rate  of  per  cent  per  annum  from  the  date  of 
the  rendition  thereof,  and  the  sum  of  $  at  the  rate  of  ten  per 
cent  from  the  date  of  the  rendition  thereof. 

Wherefore,  plaintiff  demands  judgment  against  defendants  for 
the  sum  of  $  ,  with  interest  thereon  from  the  day  of 

,  19     ,  and  for  costs  herein. 

A.  B.,  Attorney  for  plaintiff. 

Jury's  PI.—  91. 


1430  ACTIONS    UPON    BONDS,    ETC.  [Tit.  XII. 

§356.     ANSWER. 

FORM   No.  833 — Defense  of  failure  of  consideration. 

[Title  of  court  and  cause.] 

The  defendant  answers  the  plaintiff's  complaint  [or  petition],  and 
alleges : 

1.  That  he  gave  the  bond  mentioned  therein  to  the  said  A.  B. 
solely  in  consideration  of  the  performance  by  said  A.  B.  of  the  cove- 
nants and  conditions  upon  his  part,  in  an  agreement  then  made 
between  them,  of  which  agreement  a  copy  is  annexed  hereto,  marked 
"Exhibit  A,"  and  made  a  part  of  this  answer. 

2.  That  this  defendant  on  his  part  duly  performed  all  the  condi- 
tions of  said  agreement. 

3.  That  the  plaintiff  failed  and  neglected  to  perform  the  condi- 
tions of  said  agreement  on  his  part  to  be  performed,  in  this:  [Here 
allege  the  breach  as  in  an  action  upon  the  contract.] 

[Concluding  part.] 

Form  of  complaint  in  an  action  on  an  undertaking  given  under  section  511  of  the 
Kansas  Code  of  Civil  Procedure  (Gen.  Stats.,  p.  730):  Doyle  v.  Boyle,  19  Kan.  168, 
169. 

Form  of  answer  in  an  action  by  a  trustee  upon  a  bond  for  a  deed:  Mcintosh  v. 
Johnson,  8  Utah  359,  31  Pac.  450. 

Form  of  complaint  by  surety  on  an  attachment  bond:  Long  v.  Sullivan,  21  Colo. 
109,  40  Pac.  359. 

Form  of  petition  in  an  action  on  a  bond,  brought  by  plaintiff  as  the  legal  repre- 
sentative of  a  deceased  person:    Tittman  v.  Green,  108  Mo.  22,  27,  18  S.  W.  885. 

Form  of  complaint  in  an  action  upon  a  bond  given  upon  a  partnership  agreement: 
Remington  v.  Cole,  62  Cal.  311,  312. 

Form  of  bond  in  an  action  in  ejectment  in  which  the  defendant  claims  under  a 
guardian's  sale,  the  plaintiff  contending  that  the  guardianship  proceedings  were 
void:    Larimer  v.  Wallace,  36  Neb.  444,  449,  54  N.  W.  835,  837. 

Form  of  bond  in  an  action  thereon,  said  bond  having  been  executed  in  pursuance 
of  the  provisions  of  section  1030  of  the  Nebraska  Code  of  Civil  Procedure:  Morri- 
son v.  Boggs,  44  Neb.  248,  249,  62  N.  W.  473. 

Form  of  bond  given  in  probate:    Kelley  v.  Seay,  3  Okla.  527,  41  Pac.  615. 

Form  of  supersedeas  bond  given  in  forcible  entry  and  detainer  proceedings,  set 
forth,  and  held  sufficient,  and  judgment  in  an  action  thereon  affirmed:  Hinckley  v. 
Casey,  54  Wash.  34,  102  Pac.  1051,  1052. 

Form  of  guaranty  bond  in  an  action  to  recover  on  moneys  paid  thereon  in  satis- 
faction of  mechanics'  liens:    McMenomy  v.  White,  115  Cal.  339,  47  Pac.  109. 

For  an  agreed  statement  of  facts  in  an  action  by  a  municipality  upon  the  official 
bond  of  a  city  clerk,  see  Lowe  v.  City  of  Guthrie,  4  Okla.  290,  44  Pac.  198. 

§357.     ANNOTATIONS. — Bonds  and  undertakings,  and  actions  thereon. 

1.  Actions. — Essentials  of  a  complaint  in  an  action  upon  a  bond. 

2.  Filing  of  bond  must  be  pleaded. 

3,  4.  Complaint  in  an  action  upon  a  bail  bond. 


Oh.  C] 


ANNOTATIONS. 


1431 


b.  Demand  in  action  against  surety. 

6.  Sufficient  pleading  of  demand. 

7.  Non-payment  of  damages  a  necessary  allegation. 

8.  Action  by  assignee  of  judgment. 

9.  Defenses. — In  general. 

10.  Laches  must  be  pleaded  as  a  defense. 


1.  ACTIONS. — Essentials  of  a  com- 
plaint in  an  action  upon  a  bond. — The 
elements  of  an  action  on  a  bond  to  re- 
cover the  penalty  thereof,  and  conse- 
quently the  essential  matters  to  be  al- 
leged in  the  complaint  are:  1.  The 
execution  and  delivery  of  the  contract 
or  obligation  to  which  the  bond  was  in- 
cident, and  for  which  it  was  given  to 
insure  execution.  2.  The  execution  and 
delivery  of  the  bond.  3.  Failure  of  the 
defendant  to  perform  his  contract,  or 
failure  of  title,  or  any  other  state  of 
facts  showing  default  in  the  defendant 
in  relation  to  the  contract,  and  from 
which  the  plaintiff  has  suffered  detri- 
ment. 4.  The  nature  and  character  of 
damages  to  the  plaintiff  growing  out  of 
defendant's  failure  or  fault  in  connection 
with  the  contract,  with  a  special  valua- 
tion so  as  to  advise  the  defendant  fully 
of  the  issues  he  is  expected  to  meet  in 
regard  to  damages:  Adapted  from  Kum- 
blad  v.  Allen,  51  Wash.  425,  99  Pac.  19. 

2.  Filing  of  bond  must  be  pleaded. — A 
complaint  in  an  action  upon  a  bail  bond 
must,  in  addition  to  other  matters,  con- 
tain the  necessary  averment  that  the 
undertaking  declared  upon  was  filed  by 
the  clerk  of  the  court,  or  with  the  proper 
officer.  Until  this  has  been  done  no  judg- 
ment of  forfeiture  can  be  given  or  ren- 
dered: Malheur  County  v.  Carter,  52 
Ore.  616,  98  Pac.  489,  491;  Belt  v.  Spauld- 
ing,  17  Ore.  130,  20  Pac.  827. 

3.  Complaint  in  an  action  upon  a  bail 
bond  should  show  the  occasion  for  the 
taking  of  the  bond;  the  criminal  pro- 
ceeding commenced  or  pending  in  which 
said  bond  was  given;  the  fact  that  an 
examination  had  been  had  before  an 
officer  qualified  by  law  to  hold  an  ex- 
amination or  to  admit  to  bail;  that  upon 
such  examination,  or  otherwise,  it  was 
held  or  adjudged  that  there  was  probable 
cause  for  believing  the  defendant  guilty 
of  some  specified  charge;  that  the  de- 
fendant was  held  to  answer  the  charge; 
that  he  was  admitted  to  bail  thereupon; 
that  bail  was  given  for  the  release  of  the 
defendant;     that    the    undertaking    was 


filed  with  the  clerk  of  thd  court;  that 
the  defendant  did  not  appear  thereafter 
to  answer  to  the  charge,  but  made  de- 
fault, and  that  the  undertaking  was 
thereupon  declared  forfeited  by  the 
court;  that  demand  on  the  defendants 
for  payment  was  made,  and  that  they 
failed  to  respond  thereto:  Malheur 
County  v.  Carter,  52  Ore.  616,  9S  Pac. 
489,  491. 

4.  To  constitute  a  good  cause  of  action 
on  an  undertaking  for  bail,  it  is  neces- 
sary to  allege  that  defendant  was 
charged  with  a  crime,  that  an  examina- 
tion was  had,  and  that  he  was  held  to 
answer  the  charge:  Malheur  County  v. 
Carter,  52  Ore.  616,  98  Pac.  489,  491; 
State  v.  Logoni,  30  Mont.  472,  76  Pac. 
1044. 

5.  Demand  in  action  against  surety. — 
Demand  is  necessary  before  suit  where 
the  action  is  against  a  surety:  Mullally 
v.  Townsend,  119  Cal.  47,  51,  50  Pac. 
1066;  Pierce  v.  Whiting,  63  Cal.  538,  542, 
(against  sureties  on  attachment  bonds). 

6.  Sufficient  pleading  of  demand.  — 
Where  the  complaint  in  an  action  against 
sureties  alleged  demand  as  follows: 
"That  they  paid  the  plaintiff  the  said 
judgment,  and  demanded  of  them  the 
fulfilment  of  the  obligation  as  ex- 
pressed in  the  said  undertaking";  held, 
that  this  was  sufficiently  specific  and 
certain  to  charge  the  sureties  with  lia- 
bility upon  their  obligation:  Mullally  v. 
Townsend,  119  Cal.  47,  52,  50  Pac.  1066, 
(against   sureties   on   attachment   bond). 

7.  Non-paymentof  damages  a  necessary 
allegation. — Non-payment  of  damages  al- 
leged to  have  accrued  is  a  necessary 
averment  in  an  action  upon  an  attach- 
ment bond.  Non-payment  being  a 
breach,  it  is  of  the  substance  of  the 
action,  and  therefore  must  be  alleged: 
State  ex  rel.  Rife  v.  Reynolds,  137  Mo. 
App.  261,  117  S.  W.  653,  654;  Morgan  v. 
Menzies,  60  Cal.  341;  Church  v.  Campbell, 
7  Wash.   547,  35  Pac.   381. 

S.  Action  by  assignee  of  Judgment. — 
An  assignee  of  a  judgment  can  not  re- 
cover on   an    undertaking   given    to   stay 


1432 


SUBSCRIPTION  AGREEMENTS. 


[Tit.  XII. 


proceedings  where  he  is  not  also  the 
assignee  of  the  undertaking:  Chilstrom 
v.  Eppinger,  127  Cal.  326,  78  Am.  St.  Rep. 
46.  59  Pac.  696. 

9.  DEFENSES. — In  general. — An  an- 
swer to  a  complaint  in  an  action  on  a 
contract  to  indemnify  plaintiff  as  surety 
upon  a  forthcoming  bond  may  be  denial 
of  the  execution  of  the  bond,  or  of  the 
recovery  of  the  judgment  against  the 
respondent,   or   the   payment   thereof,    or 


an  allegation  of  collusion  or  fraud.  Or- 
dinarily, an  answer  which  does  not  con- 
tain any  such  defenses  raises  no  issue: 
American  Bonding  Co.  v.  Dufur,  49 
Wash.  632,  96  Pac.  160,  162. 

10.  Laches  must  be  pleaded  as  a  de- 
fense in  an  action  on  a  guardian's  bond, 
where  it  does  not  appear  from  the  com- 
plaint that  defendant  has  been  in  any 
way  prejudiced  thereby:  Cook  v.  Ceas, 
147  Cal.  614,  82  Pac.  370. 


CHAPTER   CI. 

Subscription   Agreements. 

Page 

358.  Complaints   [or  petitions] 1432 

Form  No.  834.  On  a  subscription  agreement.     (In  general) . . .  1432 
Form  No.  835.  On  subscription  agreement  for  the  building  of  a 

church    1433 

359.  Answers  , 1434 

Form  No.  836.  Defense  of  denial  of  execution  of  subscription 

agreement   1434 

Form  No.  837.  Defense  of  fraud  in  obtaining  agreement 1434 

Form  No.  838.  Defense  of  non-performance  of  conditions  upon 

which  the  subscription  was  given 1434 


§358.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  834 — On  a  subscription  agreement.     (In  general.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  [If  plaintiff  is  a  corporation,  so  allege.] 

2.  That  the  plaintiff,  in  the  month  of  ,  19  ,  was  proposing 
and  contemplating  the  construction  of  [here  state  the  nature  of  the 
proposed  construction  or  improvement]. 

3.  That  the  defendant  and  others  were  desirous  that  plaintiff 
should  construct  said  [here  specify],  and  they  requested  plaintiff  to 
construct  and  complete  the  same ;  that,  for  the  purpose  of  enabling 
the  plaintiff  to  do  so,  the  defendant  and  others  made  and  executed 
to  plaintiff  their  agreement  and  subscription  in  writing,  whereby  the 
defendant,  and  each  of  said  other  subscribers,  respectively,  promised 


Ch.  CI.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1433 

to  pay  to  plaintiff  the  sum  of  money  in  said  subscription  agreement 
set  opposite  to  their  respective  names;  that  in  consideration  of  the 
premises  and  of  the  subscription  by  said  subscribers,  defendant  prom- 
ised to  [here  state  the  nature  of  the  promise  and  consideration  for 
said  subscription]. 

That  the  following  is  a  copy  of  said  subscription  agreement, 
namely :  [Here  insert  copy,  or  annex  and  refer  to  the  same  as  an 
exhibit.] 

4.  That  upon  the  consideration  of  said  subscription  agreement 
plaintiff  constructed  and  completed  said  [or  partially  con- 
structed, etc.],  and  expended  thereon  large  sums  of  money,  and 
incurred  large  liabilities;  that  the  plaintiff  duly  performed  all  of  the 
conditions  of  said  subscription  agreement  on  its  part. 

5.  That  after  the  construction  and  completion  of  said  ,  to 
wit,  [or  allege  the  happening  of  the  event  or  contingency  upon  which 
the  subscription  was  to  have  been  paid,]  on  the  day  of  , 
19  ,  plaintiff  demanded  from  the  defendant  the  said  sum  of  $  , 
the  amount  of  his  said  subscription,  but  the  defendant  has  not  paid 
the  same,  nor  any  part  thereof,  and  the  whole  thereof  is  due  and 
unpaid  from  the  defendant  to  the  plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 

sum  of  $  ,  and  interest  thereon  from  the  day  of  , 

and  plaintiff's  costs  of  suit. 

rTT    .„     ,.      ,  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  835 — On  subscription  agreement  for  the  building  of  a  church. 

[Title  of  court  and  cause.  J 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  [Allegation  of  incorporation.] 

2.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  erecting 
a  building  at             ,  for  the  purposes  of  public  worship. 

3.  That  the  defendant  and  others  requested  the  plaintiff  to  com- 
plete the  same,  and  for  the  purpose  of  enabling  the  plaintiff  to  do  so, 
subscribed  and  agreed  to  pay  to  the  plaintiff  the  sum  of  $  ,  in 
consideration  of  the  premises  and  of  a  like  subscription  and  agree- 
ment of  others,  by  executing  and  delivering  the  instrument,  of  which 
the  following  is  a  copy:    [Set  out  copy,  omitting  other  names.] 

4.  5.    [As  in  preceding  form.] 
[Concluding  part.] 


1434 


SUBSCRIPTION  AGREEMENTS.  [Tit.  XII. 


§359.     ANSWERS. 

FORM   No.  836 — Defense  of  denial  of  execution  of  subscription  agreement. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Defendant  denies  that  he  at  the  time  stated  in  the  complaint  herein, 
or  at  any  time,  or  at  all,  subscribed  to  or  executed  the  alleged  sub- 
scription agreement  set  forth  in  said  complaint. 

[Etc.] 

FORM   No.  837 — Defense  of  fraud  in  obtaining  agreement. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Defendant  admits  the  execution  of  said  agreement,  but  alleges  that 
the  same  was  executed  through  false  and  fraudulent  representations 
made  by  the  plaintiff  to  the  defendant  in  respect  to  the  object  of 
said  agreement,  and  the  purposes  for  which  said  proposed  fund 
therein  provided  for  was  to  be  expended,  and  that  said  false  and 
fraudulent  representations  consisted  in  statements  as  follows :  [Here 
state  in  particular  the  false  and  fraudulent  representations  made]  ; 
that  defendant  believing  said  representations  to  be  true,  signed  said 
agreement;  that  there  was  no  other  consideration  for  the  signing 
thereof. 

[Etc.] 

FORM   No.  838— Defense  of  non-performance  of  conditions   upon   which  the 
subscription  was  given.* 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Defendant  denies  that  the  amount  of  his  subscription  in  said  agree- 
ment alleged  is  due  or  payable,  and  in  this  behalf  avers  that  said  sub- 
scription was  given  upon  the  express  understanding  and  agreement, 
and  upon  the  condition,  that  a  fund  of  $  [or  state  such  other  con- 
dition as  may  have  been  the  basis  of  said  agreement]  should  first  be 

i  Where  an  action  is  brought  to  recover  from  members  of  a  club  organized  for 
social  purposes  their  respective  amounts  subscribed  to  a  building  fund,  it  is  neces- 
sary to  show  by  the  answer  in  support  of  the  defense  "that  no  demand  would  be 
made  for  the  payment  of  this  obligation,  or  any  part  thereof,  until  it  can  be 
prudently  discharged  in  the  discretion  of  the  board  of  directors,  from  the  surplus 
revenue  of  the  club,"  and  that,  as  a  matter  of  fact,  no  surplus  revenue  for  said  or 
for  any  purpose  had  ever  existed:  Rollins  v.  Denver  Club,  43  Colo.  345,  96  Pac.  188, 
18  L.  R.  A.   (N.  S.)   733. 


Ch.  CII.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1435 

pledged  or  subscribed  under  said  agreement,  and  by  bona  fide  sub- 
scribers thereto,  before  the  defendant  should  be  called  upon  to  pay 
the  amount  of  said  subscription  or  any  part  thereof;  that  said  fund 
of  $  [or  state  the  condition]    has  never  been  subscribed  or 

pledged  under  said  or  any  agreement  for  the  purpose  thereof  by  bona 
fide  subscribers  thereto,  or  otherwise. 
[Etc.] 

As  to  action  to  collect  unpaid  stock  subscriptions,  see  annotations  to  ch.  XXXVIII, 
par.  21. 


CHAPTER    CII. 

Charter-Party  and   Maritime  Agreements. 

Page 
§  360.  Complaints   [or  petitions] 1435 

Form  No.  839.  By  ship-owner  against  charterer,  for  freight. .  1435 

Form  No.  840.  By  ship-owner,  for  damages  and  demurrage  for 

failure  to  load  goods  on  ship 1436 

Form  No.  841.  For  damages  for  abandoning  voyage 1436 


§360.     COMPLAINTS    [OR   PETITIONS]. 

FORM   No.  839 — By  ship-owner  against  charterer,  for  freight. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  or  about  the  day  of  ,  19  ,  at  ,  the 
plaintiff  and  defendant  agreed  by  charter-party,  that  the  plaintiff's 
ship,  called  ,  should  with  all  convenient  speed  sail  to  , 
and  that  the  defendant  should  there  load  her  with  a  full  cargo  of 

,  or  other  lawful  merchandise,  to  be  carried  to  ,  and  there 

delivered  on  payment  by  the  defendant  to  the  plaintiff  of  freight  at 
$  per  ton,  payable  as  follows :    [State  terms  of  payment.] 

2.  That  thereafter  the  said  ship  accordingly  sailed  to  afore- 
said, and  was  there  loaded  by  the  defendant  with  a  full  cargo  of  law- 
ful merchandise,  and  the  plaintiff  carried  the  said  cargo  in  said  ship 
to  aforesaid,  and  there  delivered  the  same  to  the  defendant, 
and  otherwise  performed  all  the  conditions  of  said  contract  on  his 
pan. 

3.  That  said  freight  amounted  in  the  whole  to  the  sum  of  $ 


1436  CHARTER-PARTY,  ETC.  [Tit.  XII. 

4.  That  said  sum  has  not  been  paid,  nor  any  part  thereof;  that  the 
whole  thereof  remains  due  and  payable  from  the  defendant  to  the 
plaintiff. 

[Concluding  part.] 

FORM   No.  840 — By   ship-owner  for   damages   and   demurrage   for  failure   to 
load  goods  on  ship. 

[Title  of  court  and  cause.] 
[After  introductory  part:] 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
and  defendant  agreed  by  charter-party  that  the  defendant  should 
deliver  to  the  plaintiff's  ship,  the             ,  at  the  port  of  ,  on  the 

day  of  ,   19     ,  tons  of    [state  what],  which  said 

ship  was  to  carry  to  ,  and  there  deliver  to  ,  on  payment 

of  the  freight  money,  to  wit,  $  ;  that  it  was  further  agreed  by 

said  charter-party  that  defendant  should  have  days  for  load- 

ing, and  days  for  discharge,  and  days  for  demurrage,  if 

desired  by  him,  or,  if  required,  at  the  rate  of  $  per  day. 

2.  That  at  the  time  fixed  by  said  agreement  the  plaintiff  had  said 
ship  at  said  port,  and  was  ready  and  willing  and  offered  to  receive 
said  merchandise  from  the  defendant,  and  plaintiff,  at  the  instance 
of  defendant,  held  said  vessel  at  said  port  for  a  period  of  days. 

3.  That  the  period  allowed  for  loading  and  demurrage  under  said 
charter-party  has  elapsed,  but  the  defendant  has  not  delivered,  or 
offered  to  deliver,  said  or  any  merchandise  to  said  vessel ;  that  there- 
by, in  addition  to  demurrage,  at  the  rate  of  $  per  day  as  afore- 
said, for  said  period  of  days,  no  part  of  which  has  been  paid, 
plaintiff  has  been  damaged  in  the  sum  of  $  .  [Here  damages 
may  be  specified.] 

4.  Wherefore,  the  plaintiff  prays  judgment  for  $  for  demur- 
rage aforesaid,  and  for  $              additional  as  damages. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 

FORM    No.  841 — For  damages  for  abandoning  voyage. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 
1.  That  on  or  about  the  day  of  ,  19     ,  at  ,  the 

plaintiff  and  defendant  agreed  by  charter-party  that  the  defendant's. 


Ch.  CHI.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  H37 

ship,  called  the  ,  then  at  ,  should  sail  to  ,  or  so  near 

there  as  she  could  safely  get  with  all  convenient  speed,  and  there 
load  a  full  cargo  of  ,  or  other  lawful  merchandise,  from  the 

factors  of  the  plaintiff,   and  carry  the  same  to  ,  and  there 

deliver  the  same  on  payment  of  freight. 

2.  That  the  plaintiff  duly  performed  all  the  conditions  of  the  con- 
tract on  his  part  to  be  performed. 

3.  That  the  said  ship,  the  ,  did  not  with  all  convenient  speed 
sail  to  ,  or  so  near  thereto  as  she  could  safely  get ;  but  that  the 
defendant  caused  the  said  ship  to  deviate  from  her  said  proposed 
voyage,  and  to  abandon  the  same  to  the  damage  of  the  plaintiff  in 
the  sum  of  $ 

[Concluding  part.] 


CHAPTER  Clll. 

Breach  of  Promise  of  Marriage. 

Page 

361.  Complaints   [or  petitions] 1437 

Form  No.  842.  For  breach  of  promise  of  marriage 1437 

Form  No.  843.  For  marriage  with  another 1438 

362.  Answers  .    1438 

Form  No.  844.  Denial  of  promise  1438 

Form  No.  845.  Denial  of  breach   1438 

Form  No.  846.  Defense  alleging  bad  character  of  plaintiff 1438 


§361.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  842 — For  breach  of  promise  of  marriage. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  in  consideration 
of  the  promise  of  the  plaintiff,  being  then  unmarried,  to  marry  the 
defendant  on  request  [or  at  a  date  certain],  the  defendant  promised 
to  marry  the  plaintiff  within  a  reasonable  time  [or  on  the  day 
of            ,19     ,  as  the  case  may  be]. 

2.  That  the  plaintiff,  confiding  in  said  promise,  has  ever  since  been 
[or  was  on  said  date]  ready  and  willing  to  marry  the  defendant. 

3.  That  although  a  reasonable  time  elapsed  before  this  action  was 
commenced   [or  although  she  on  the  day  of  ,19        re- 


X438  BREACH  OF  PROMISE.  [Tit.  XII. 

quested  him  so  to  do],  yet  the  defendant  neglects  and  refuses  to 
marry  the  plaintiff,  to  her  damage  in  the  sum  of  $ 
[Concluding  part.] 

FORM   No.  843 — For  marriage  with  another. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1,2.   [As  in  preceding  form.] 

3.  That  the  defendant,  contrary  to  his  [her]  said  promise,  after- 
wards married  a  certain  other  person,  to  wit,  one  C.  D. 

[Or,  That  at  the  time  of  making  said  promise,  the  defendant  repre- 
sented to  the  plaintiff  that  he  [she]  was  unmarried,  whereas  he  [she] 
was  then  in  fact  married  to  another  person,  of  which  fact  the  plaintiff 
had  no  knowledge.] 

[Etc.] 

§362.     ANSWERS. 

FORM   No.  844 — Denial  of  promise. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 
Defendant  denies  that  he  ]she]  ever  at  any  time  promised  to  marry 
the  plaintiff. 
[Etc.] 

FORM   No.  845 — Denial  of  breach. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

The  defendant  denies  that  he  at  any  time  refused  to  marry  the 
plaintiff,  but,  on  the  contrary,  alleges  that  on  or  about  the  day 

of  ,  19     ,  he  offered  to  marry  the  plaintiff,  and  ever  since  said 

date  has  been,  and  now  is,  ready  and  willing  to  marry  the  plaintiff. 

[Concluding  part.] 

FORM   No.  846 — Defense  alleging  bad  character  of  plaintiff. 

[Title  of  court  and  cause.] 

The  defendant  answers  the  plaintiff's  complaint  [or  petition],  and 
alleges : 

1.  That  at  the  time  of  making  the  promise,  as  therein  alleged,  the 
plaintiff  was  unchaste  [or  habitually  intemperate],  but  the  same  was 
then  unknown  to  the  defendant. 


Ch.  CIV.]  LEAVE   TO  SUE.— FORMS.  14;}f) 

2.  T>.at  as  soon  as  he  was  informed  thereof  he  refused  to  marry  the 
plaintiff. 
[Etc.] 

Form  of  complaint  in  an  action  for  breach  of  promise  of  marriage:  Lahey  v. 
Knott,  8  Ore.  198,  199. 

A  suit  for  breach  of  a  marriage  contract  is  ex  contractu,  and  not  ex  delicto, 
although  it  partakes  somewhat  of  the  characteristics  of  the  latter:  Broyhill  v.  Nor- 
ton, 175  Mo.  190,  74  S.  W.  1024;  Sperry  v.  Cook,  138  Mo.  App.  296,  120  S.  W.  654,  656. 


CHAPTER    CIV. 

Actions  on  Judgments. 

Page 

$  363.  Leave  to  sue  upon  a  judgment 1439 

Form  No.  847.  Notice  of  motion  for  leave  to  sue  upon  judg- 
ment     1439 

Form  No.  848.  Affidavit  accompanying  application  for  leave  to 

sue  upon  a  judgment 1440 

Form  No.  849.  Order  granting  leave  to  sue  upon  a  judgment. .  1441 

I  364.  Complaints   [or  petitions] 1441 

Form  No.  850.  On  judgment  wholly  unpaid.     (Common  form.)  1441 

Form  No.  851.  On  judgment  partially  satisfied 1442 

Form  No.  852.  On   judgment   for   deficiency   after  foreclosure 

sale   1442 

Form  No.  853.  On  judgment  assigned    1443 

Form  No.  854.  On  foreign  judgment  of  court  of  general  juris- 
diction      1444 

Form  No.  855.  On  foreign  judgment  of  inferior  tribunal 1444 

S  365.  Answers 1445 

Form  No.  856.  Defense  of  payment  1445 

Form  No.  857.  Defense  based  upon  vacation  of  judgment 1445 

Form  No.  858.  Defense  that  judgment  was  obtained  by  fraud. .  1445 

Form  No.  859.  Defense  of  invalidity  of  foreign  judgment 1446 

Form  No.  860.  Defense  of  invalidity  of  judgment  against  non- 
resident       1446 

§  366.  Annotations 1447 

§363.  LEAVE  TO  SUE  UPON  A  JUDGMENT. 

Under  jurisdictions  where  leave  to  sue  upon  a  judgment  must  first  be  granted  by 
the  court,  the  forms  Nos.  847  to  849  may  be  used. 

FORM  No.  847 — Notice  of  motion  for  leave  to  sue  upon  a  judgment. 

[Title  of  court  and  cause,  etc.] 

To  C.  D.,  attorney  for  defendant : 

Take  notice,  that  a  motion  will  be  made  at  [a  special]  term  of  this 


1440  ACTIONS   UPON   JUDGMENTS.  [Tit.  XII. 

court,  to  be  held  in  and  for  the  county  of  ,  at  the  county  court- 

house therein,  on  the  day  of  ,  19     ,  at  o'clock  in 

the  forenoon  of  said  day,  or  as  soon  thereafter  as  counsel  can  be 
heard,  upon  the  affidavit  hereto  annexed,  for  an  order  granting  leave 
to  the  plaintiff  to  bring  an  action  against  the  defendant  upon  the 
judgment  mentioned  and  described  in  said  affidavit  [with  costs  of 
this  motion],  and  for  such  other  and  further  relief  as  may  be  proper. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

[Annex  affidavit  as  in  form  No.  848.] 

FORM   No.  848 — Affidavit   accompanying    application   for    leave   to    sue    upon 
a  judgment. 

[Title  of  court  and  cause,  etc.] 
County  of  ,  ss. 

,  of  ,  being  duly  sworn,  says:    That  on  the  day 

of  ,  19     ,  a  judgment  was  rendered  in  the  court  of  the 

state  of  ,  for  the  sum  of  $  ,  and  $  damages,  and 

$  costs,  in  favor  of  this  deponent  and  against  ;  that  the 

judgment-roll  was  thereupon  filed  in  the  office  of  the  clerk  of  said 
court  in  the  county  of  ,  on  the  day  of  ,  19     ,  and 

said  judgment  was  then  and  there  duly  docketed  [or  a  transcript 
whereof  was  duly  filed  and  docketed  in  the  clerk's  office,  on 

the  day  of  ,  19     ] . 

That  said  judgment  was  rendered  upon  filing  the  report  of  , 

duly  appointed  in  said  action  as  referee,  to  hear  and  determine  the 
same  [or  upon  filing  the  decision  of  Hon.  ,  a  justice  (or  judge) 

of  said  court;  or  upon  the  verdict  of  a  jury  rendered  in  said 

action;  or  upon  the  default  of  the  said  defendant  to  appear,  or 
answer,  therein,  upon  personal  service  of  the  summons  in  said  action 
upon  him;  or  state  other  authority  for  entry  of  judgment,  so  as  to 
show  that  the  case  is  not  excepted  by  statute],  and  is  wholly  unpaid 
[or  is  unpaid  to  the  amuunt  of  $  ,  with  interest  (etc.)]. 

That  at  or  after  the  time  of  the  rendition  of  said  judgment  the 
defendant  was  the  owner  of  certain  real  estate  situate  in  the  county 
of  ,  and  that  the  lien  of  said  judgment  upon  said  real  estate  is 

about  to  expire.  [Or  state  other  reasons  why  leave  is  desired  to  sue 
upon  the  judgment.] 

[Where  prayer  is  that  an  order  for  service  by  publication  be  made, 
allege  further:] 


Ch.  CIV. J  COMPLAINTS    [OR   PETITIONS].— FORMS.  H4i 

That  personal  service  of  notice  of  motion  to  sue  upon  said  judg- 
ment can  not  be  made  upon  [defendant]  with  due  diligence,  for  the 
following  reasons:    [State  the  same.] 

[Deponent's  signature.] 

[Jurat.] 


FORM   No.  849 — Order  granting  leave  to  sue  upon  a  judgment. 

[Title  of  court  and  cause,  etc.] 

On  reading  and  filing  the  affidavit  of  ,  sworn  to  ,  19     , 

and  [name  any  other  motion  papers],  with  proof  of  due  service  Of 
notice  of  motion  upon  [etc.],  as  required  by  the  order  of  this  court, 
made  on  the  day  of  ,  19     ,  and  on  reading  and  filing 

[name  any  opposing  papers],  and  on  motion  of  ,  of  counsel  for 

the  plaintiff,  and  after  hearing  [etc. ;  or  no  one  opposing]  : 

It  is  hereby  ordered,  that  leave  be  and  the  same  is  hereby  granted 
to  the  plaintiff  to  bring  an  action  against  the  defendant  upon  the 
judgment  rendered  in  the  above-entitled  action  in  the  court,  in 

favor  of  said  ,  against  defendant,  on  the  day  of  , 

19     ,  for  $  damages,  and  $  costs,  which  said  judgment 

was  entered  and  docketed  in  the  office  of  the  clerk  of  the  court, 

county  of  ,  on  said  date  [or,  on  the  day  of  ,  19     ]. 

[Date.]  S.  T.,  Judge. 

§364.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  850 — On  judgment  wholly  unpaid.     (Common  form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  in  the 
court  of  the  county  of  ,  in  this  state,  [or,  before  L.  M.,  a  justice 
of  the  peace  in  and  for  the  town  of,  etc.]  a  judgment  was  duly  given 
and  made  by  said  court  [or  justice]  in  favor  of  this  plaintiff  and 
against  the  defendant  for  $  ,  in  an  action  wherein  this  plaint- 
iff was  plaintiff  [or  defendant]  and  said  defendant  was  defendant 
[or  plaintiff]. 

2.  That  said  judgment  has  not  been  paid,  nor  any  part  thereof,  but 
that  the  whole  thereof  remains  due  and  payable  from  the  defendant 
to  the  plaintiff. 

[Concluding  part.] 


H42  ACTIONS   UPON   JUDGMENTS.  [Tit.  XIL 

FORM   No.  851 — On  judgment  partially  satisfied. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  on  the  day  of  ,  19  ,  in  the  superior  court  in 
and  for  the  county  of  ,  state  of  ,  a  judgment  was  duly 
given  and  made  by  said  court  in  favor  of  plaintiff  herein,  and  against 
this  defendant,  in  an  action  in  said  court  pending,  wherein  said 

was  plaintiff  and  said  was  defendant   [together  with  certain 

fictitious  defendants,  as  to  whom  said  action  was  dismissed],  for  the 
sum  of  $  ,  with  legal  interest  and  costs,  taxed  at  $ 

2.  That  the  defendant  has  not  paid  the  said  judgment,  nor  any  part 
thereof,  except,  by  garnishment  of  ,  a  creditor  of  defendant, 
the  sum  of  $  was  collected  on  ,  19  ,  and  applied  as  so 
much  credit  on  account  of  said  judgment;  that  the  balance  of  said 
judgment,  together  with  interest  thereon  from  said  last-mentioned 
date,  remains  wholly  due  and  unpaid  from  the  defendant  to  the 
plaintiff,  and  unsatisfied  of  record. 

Wherefore,  plaintiff  prays  judgment  against  defendant  herein  for 
said  sum  of  $  ,  and  costs  $  ,  and  interest  thereon  from 

,  19     ,  to  ,  19     ,  less  said  credit  of  $  ,  and  interest 

thereon,  or  in  all  the  sum  of  $  ,  and  costs  of  this  suit. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 

FORM   No.  852 — On  judgment  for  deficiency  after  foreclosure  sale. 

(In  Hibernia  S.  &  L.  Soc.  v.  Boyd,  155  Cal.  193;  100  Pac.  239. )* 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  [Allegation  of  incorporation  of  plaintiff.] 

2.  That  on  the  15th  day  of  October,  1900,  in  the  superior  court  of 
the  city  and  county  of  San  Francisco,  state  of  California,  a  judgment 

i  The  case  of  the  Hibernia  S.  &  L.  Soc.  v.  Boyd,  supra,  related  to  a  prior  action, 
in  which  all  the  papers  and  records,  including  the  record  of  both  original  and  defi- 
ciency judgments,  were  destroyed  in  the  San  Francisco  conflagration  of  April  18-20, 
1906.  The  plaintiff  made  secondary  proof  of  the  judgments  only,  introducing  no  evi- 
dence as  to  the  other  papers  and  records,  resting  in  this  upon  the  admissions  of  the 
answer,  directly  or  impliedly.  The  court  held  that  the  complaint,  as  against  merely 
a  general  demurrer  was  sufficient,  and  that  the  proof  made,  in  view  of  the  admis- 
sions of  the  answer,  warranted  the  Judgment:  Hibernia  S.  &  L.  Soc.  v.  Boyd,  155 
Cal.  193,  100  Pac.  239. 


Ch.  CIV.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  144ii 

and  decree  was  duly  given  and  made  by  said  court  in  favor  of  this 
plaintiff,  and  against  the  defendant  herein,  in  an  action  in  said  court 
last  above  named,  pending  and  numbered  69,655  upon  the  records  of 
said  court,  wherein  this  plaintiff  was  plaintiff  and  said  defendant  was 
defendant,  for  the  sum  of  $61,184.10;  and  for  the  foreclosure  of  a 
certain  mortgage  upon  the  lands  described  in  a  complaint  in  said 
action,  and  for  the  sale  of  said  lands  to  satisfy  the  said  judgment  for 
said  sum  of  $61,184.10,  and  for  the  appointment  of  a  referee  to  make 
sale  of  said  lands,  and  out  of  the  proceeds  thereof,  if  sufficient,  to 
satisfy  said  judgment  for  $61,184.10,  and  if  the  sum  so  obtained  for 
said  lands  be  insufficient  to  satisfy  said  sum,  the  said  court  order  that 
the  clerk  of  said  court  enter  a  judgment  in  said  action,  against  this 
defendant,  for  such  deficiency;  and  which  said  judgment  and  decree 
was  duly  entered  and  recorded  by  the  clerk  of  said  court,  in  judg- 
ment book  No.  57,  at  page  228,  on  October  15,  1900. 

That  thereafter,  and  in  pursuance  of  said  judgment  and  decree,  the 
said  referee  only  sold  the  said  land,  obtaining  therefor  the  sum  of 
$56,184.10;  and  that  he  thereafter  returned  to  this  court  his  report  in 
said  cause,  which,  among  other  things,  showed  the  sale  of  said  lands 
and  the  amount  received  therefor,  and  that  the  clerk  of  said  court 
did  thereafter  and  on  the  15th  day  of  November,  1900,  and  in  pur- 
suance of  said  judgment  and  decree,  and  said  report,  enter  and 
record  a  judgment  against  this  defendant,  in  said  action,  for  said 
deficiency,  to  wit,  the  sum  of  $5,000,  and  docketed  the  same  on  said 
date  of  November  15,  1900. 

3.  That  no  part  of  said  sum  of  $5,000  has  been  paid,  but  that  the 
•ame  remains  wholly  due  and  unpaid. 

Wherefore,  plaintiff  prays  for  a  judgment  against  the  said  defend- 
ant for  the  sum  of  $5,000,  together  with  interest  thereon  from  the  said 
15th  day  of  November,  1900,  at  the  rate  of  seven  per  cent  per  annum, 
and  for  the  costs  of  suit. 

Edwin  L.  Forster, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  853 — On  judgment  assigned. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  on  the  day  of  ,  19     ,  at  ,  in  the 

court,  in  and  for  the  county  of  ,  in  this  state  [or  before  L.  M., 


1444  ACTIONS   UPON   JUDGMENTS.  ITit.  Xli. 

a  justice  of  the  peace  in  and  for  the  town  of  ] ,  a  judgment  was 

duly  given  and  made  by  said  court  [or  justice]  in  favor  of  one  N.  0. 
and  against  the  defendant  herein,  in  an  action  wherein  the  said  N.  0. 
was  plaintiff  and  the  defendant  herein  was  defendant  [or  otherwise, 
as  the  case  was],  for  the  sum  of  $ 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  said  N.  0. 
duly  assigned  said  judgment  to  the  plaintiff  [of  which  the  defendant 
had  due  notice]. 

3.  [Same  as  paragraph  2,  form  No.  850.] 
[Concluding  part.] 

FORM   No.  854 — On  foreign  judgment  of  court  of  general  jurisdiction. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  at  the  times  hereinafter  mentioned,  the  court,  in  and 
for  the  county  of  ,  in  the  state  of  ,  was  a  court  of  general 
jurisdiction,  duly  created  and  organized  under  the  laws  of  that  state. 

2.  That  on  the  day  of  ,  19  ,  the  plaintiff  commenced 
an  action  in  said  court  against  the  defendant  by  the  issuance  of  sum- 
mons [or  other  process]  which  summons  was  duly  and  personally 
served  upon  said  defendant  [or  in  which  action  the  defendant  ap- 
peared in  person,  or  by  attorney]. 

3.  That  thereupon  such  proceedings  were  had  therein  in  said  court, 
that  on  the  day  of  ,  19  ,  a  judgment  for  the  sum  of 
$  was  duly  given  and  made  by  said  court,  in  favor  of  the  plaint- 
iff and  against  the  defendant. 

4.  [Same  as  paragraph  2,  form  No.  850.] 
[Concluding  part.] 

FORM   No.  855 — On  foreign  judgment  of  inferior  tribunal. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  at  the  times  hereinafter  mentioned,  L.  M.  was  a  justice 
of  the  peace,  in  and  for  the  township  of  ,  in  the  county  of 

,  and  state  of  ,  having  authority  under  and  by  virtue  of 

an  act  of  said  state,  entitled  ,  passed  on  the  day  of  , 

19  ,  to  hold  court,  and  having  jurisdiction  as  such  over  actions  of 
[set  out  jurisdiction  sufficiently  to  include  the  cause  of  action]. 


Ch.  CIV.]  ANSWERS.— FORMS.  1445 

2.  That  on  the  day  of  ,  19  ,  at  aforesaid,  the 
plaintiff  commenced  an  action  against  the  defendant  before  the  said 
justice,  by  filing  his  complaint,  and  causing  summons  to  be  issued 
by  said  justice  on  that  day,  for  the  recovery  of  [designate  cause  of 
action],  which  summons  was  duly  and  personally  served  on  the 
defendant. 

3.  That  on  the  day  of  ,  19  ,  in  said  action,  the  plaint- 
iff recovered  judgment,  which  was  duly  given  and  made  by  said  jus- 
tice against  the  defendant,  for  the  sum  of  $  ,  to  wit,  $ 

for  said  debt,   with   $  for  interest  from  the  said   date,   and 

$  costs. 

4.  [Same  as  paragraph  2,  form  No.  850.] 
[Concluding  part.] 

§365.     ANSWERS. 

FORM    No.  856 — Defense  of  payment. 

[Title  of  court  and  cause.] 

The  defendant  alleges  that  on  the  day  of  ,  19     ,  and 

before  the  commencement  of  this  action,  he  paid  to  the  plaintiff 
$  ,  in  full  settlement  and  discharge  of  said  judgment. 

[Concluding  part.] 

FORM   No.  857 — Defense  based  upon  vacation  of  judgment. 

[Title  of  court  and  cause.] 

[After  introductory  part :] 

That  on  or  about  the  day  of  ,  19     ,  upon  motion  duly 

made,  the  said  court  duly  made  and  entered  an  order  setting 

aside  and  vacating  the  said  judgment  described  in  the  complaint, 
and  that  said  judgment  is  void  and  of  no  effect. 

[Concluding  part.] 

FORM   No.  858 — Defense  that  judgment  was  obtained  by  fraud. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 
1.  That  the  judgment  therein  alleged  was  obtained  by  the  plaint- 
iff against  the  defendant  by  fraud  and  misrepresentation,  in  this: 
[Here  state  specifically  the  facts  constituting  such  fraud;  as,  for 
example:]  that  the  plaintiff,  after  the  action  in  the  complaint  [peti- 
tion] named  was  begun,  came  to  this  defendant,  and  with  the  pur- 

Jury's  PI.—  92. 


1446  ACTIONS   UPON   JUDGMENTS.  [Tit.  XII. 

pose  of  preventing  the  defendant  from  defending  said  action,  falsely 
and  fraudulently  told  him  that  he,  the  said  plaintiff,  intended  to  and 
would  dismiss  said  action,  and  requested  that  defendant  should  not 
defend  the  same,  and  represented  that  the  defendant  need  not  be  at 
any  cost  or  expense  therein. 

2.  That  this  defendant,  in  consequence  of  and  relying  upon  said 
representations,  did  not  appear  in,  or  defend,  said  action  at  the  term 
of  court  next  thereafter  held,  and  the  plaintiff  fraudulently,  and 
without  the  defendant's  knowledge,  appeared  and  prosecuted  said 
action  in  the  defendant's  absence,  and  took  said  judgment  by  the 
default  of  the  defendant,  so  as  aforesaid  fraudulently  procured. 

Wherefore,  the  defendant  prays  that  said  judgment  be  adjudged 
void,  and  the  plaintiff  be  forever  restrained  from  enforcing  it,  and 
for  defendant's  costs  of  this  action. 

C.  D.,  Attorney  for  defendant. 

FORM   No.  859 — Defense  of  invalidity  of  foreign  judgment. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

1.  Defendant  alleges  that  no  process  was  served  upon  him  in  the 
action  mentioned  in  the  complaint  [or  petition]  ;  and  that  he  never 
appeared  in  person  or  by  attorney  in  said  action. 

[Concluding  part.] 

FORM   No.  860 — Defense  of  invalidity  of  judgment  against  non-resident. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition], 
alleges  : 

1.  That  the  action  in  which  the  supposed  judgment  against  him 
was  alleged  to  have  been  recovered  arose  upon  an  alleged  contract. 

2.  That  when  said  action  was  commenced,  this  defendant  was  a 
non-resident  of  the  state  of  ,  and  a  resident  of 

3.  That  he  never  was  personally  served  in  the  state  of  ,  or 
elsewhere,  with  summons  in  said  action,  and  never  appeared  therein. 

4.  That  no  order  for  publication  of  the  summons  in  that  action 
was  ever  made.  [Or  state  other  facts  showing  failure  to  obtain 
jurisdiction.] 

[Concluding  part.] 

Form  of  motion  to  set  aside  the  judgment  in  an  action  for  an  accounting:    Childs 
v.  Kansas  City  etc.  R.  Co.,  117  Mo.  414.  416.  23  S.  W.  373. 


Ch.  CIV.]  ANNOTATIONS.  1447 

Form  of  petition  in  an  action  to  set  aside  a  judgment  of  foreclosure,  and  to 
restrain  proceedings  thereunder:  Lumpkin  v.  Williams,  1  Tex.  Civ.  App.  214,  219, 
21  S.  W.  967. 

Form  of  petition  in  an  action  to  set  aside  two  judgments:  Lantis  v.  Davidson,  60 
Kan.  389,  392,  56  Pac.  745. 

Form  of  petition  in  an  action  to  vacate  a  judgment:  Schnitzler  v.  Fourth  Nat. 
Bank,  1  Kan.  App.  674,  675,  42  Pac.  496. 

§366.     ANNOTATIONS. 

Remedy  against  an  illegal  judgment. — Where  the  statute  affords  a  full,  complete, 
and  adequate  remedy  against  an  illegal  judgment,  by  authorizing  the  aggrieved 
party  to  proceed  by  motion  to  vacate  and  set  aside,  and  permitting  an  appeal  from 
an  order  entered  upon  such  motion,  any  one  who  has  attacked  a  judgment  by  motion 
to  vacate,  and  has  failed  to  prosecute  an  appeal  from  the  denial  of  his  motion,  can 
not  subsequently  maintain  an  action  to  cancel  the  judgment,  since  the  question  of 
the  validity  of  the  judgment  is  res  adjudicata:  Chezum  v.  Claypool,  22  Wash.  498,  61 
Pac.  157,  79  Am.  St.  Rep.  955;  McCord  v.  McCord,  24  Wash.  529,  64  Pac.  748;  Bunch 
v.  Pierce  County,  53  Wash.  298,  101  Pac.  874,  875. 

Decree  in  proceeding  to  vacate  former  judgment. — A  proceeding  under  the  Arkan- 
sas statutes  (Kirby's  Dig.  §§  4431-4437)  to  have  a  judgment  set  aside  which  was 
rendered  at  a  former  term  is  equivalent  to  an  independent  action  instituted  for  that 
purpose,  and  the  order  of  the  court,  after  vacating  the  judgment  or  refusing  to  do 
so,  is  final,  in  the  sense  that  it  determines  the  rights  of  the  parties  under  the  judg- 
ment, even  though  after  vacating  the  judgment  it  leaves  the  original  still  pending 
for  further  proceedings:  Ayers  v.  Anderson-Tully  Co.,  89  Ark.  160,  116  S.  W.  199, 
200,  citing  the  following  authorities  from  states  having  similar  statutes:  Hunting- 
ton v.  Finch,  3  Ohio  St.  445;  Braden  v.  Hoffman,  46  Ohio  St.  639,  22  N.  E.  930;  Weber 
v.  Tschetter,  1  S.  Dak.  205,  46  N.  W.  201;  Joyce  v.  New  York,  20  How.  Pr.  439;  Hen- 
derson v.  Gibson,  19  Md.  234;  Curtiss  v.  Bell,  131  Mo.  App.  245,  111  S.  W.  131. 

A  judgment  procured  by  fraud  may  be  set  aside  upon  motion:  Hamilton  v.  Mc- 
Lean, 139  Mo.  678,  41  S.  W.  224;  Mayberry  v.  McClurg,  51  Mo.  256;  Cross  v.  Gould, 
131  Mo.  App.  585,  110  S.  W.  672. 

A  scire  facias  proceeding  to  revive  the  lien  of  a  judgment  is  not  the  institution  of 
a  new  suit.  No  petition  is  required  in  such  case,  nor  is  the  service  of  'he  usual 
process  of  summons  or  a  copy  of  the  petition  required:  Bick  v.  Vaughn,  140  Mo. 
App.  595,  120  Mo.  618,  620;  Sutton  v.  Cole,  155  Mo.  206,  55  S.  W.  1052;  Bick  v.  Tanzey, 
181  Mo.  515,  80  S.  W.  902;  State  v.  Hoeffner,  124  Mo.  488,  28  S.  W.  1;  Sutton  v.  Cole, 
73  Mo.  App.  518. 

An  original  petition  can  in  no  respect  be  treated  as  a  scire  facias  proceeding,  evea 
though  there  are  references  therein  to  a  revival  and  renewal  of  the  lien  of  a  former 
judgment;  for  in  a  scire  facias  proceeding  in  which  the  lien  of  a  judgment  is  r  night 
to  be  revived  and  renewed,  no  petition  whatever  is  required,  whereas  a  petition 
must  be  filed  when  the  suit  is  on  a  judgment:  Bick  v.  Vaughn,  140  Mo.  App.  595,. 
120  S.  W.  618,  620,  construing  section  3715  Mo.  Rev.  Stats.  1899,— Ann.  Stats.  1906r, 
p.  2083. 


TITLE  XIII. 

Actions  for  Negligence. 

Page 
Chapter  CV.     Employers'  Liability  Cases,  and  Actions  against 

Employees 1448 

CVI.     Negligence  of  Various  Persons  Owing  a  Con- 
tractual Duty 1461 

CVII.     Negligence  of  Carriers  of  Property  or  Messages  1471 
CVIII.     Negligence  of  Carriers. — Actions  for  Injuries 

to  Passengers  not  Resulting  in  Death 1480 

CIX.     Death  by  Wrongful  Act 1494 

CX.     Negligence   of   Carriers. — Actions   by   Persons 

other  than  Passengers 1506 

CXI.     Miscellaneous  Cases  of  Negligence 1529 


CHAPTER   CV. 

Employers'   Liability   Cases,   and   Actions   against   Employees. 

Page 

§  367.  Complaints   [or  petitions] 1449 

Form  No.  861.  By  employee  against  railroad  company,  for 
damages  resulting  from  injuries  sustained  in 

operation  of  defective  machinery. 1449 

Form  No.  862.  By  servant,  to  recover  damages  for  personal 
injuries  sustained  from  negligence  of  em- 
ployer in  requiring  performance  of  labor  with 

which  the  servant  was  not  familiar 1450 

Form  No.  863.  Under   employers'   liability   act 1451 

Form  No.  864.  By  employer,  for  servant's  negligence 1454 

Form  No.  865.  By  employer,  for  repayment  of  money  advanced 

for  services 1454 

S  368.  Answers  1455 

Form  No.  866.  Defense  based  upon  failure  of  plaintiff  to  give 
notice    prescribed    by    statute    as    condition 

precedent  to  action   1455 

Form  No.  867.  Denial,  and  defense  of  contributory  negligence 

and  assumed  risk  1456 

Form  No.  868.  Defenses— (1)  contributory  negligence  of  plaint- 
iff,    (2)     negligence     of     fellow-servant     of 

plaintiff 1457 

8  369.  Annotations   1458 

(1448) 


Cb.  CV.]  COMPLAINTS    [OR  PETITIONS].— FORMS.  1449 

§367.     COMPLAINTS   [OR   PETITIONS]. 

FORM  No.  861 — By  employee  against  railroad  company,  for  damages  result- 
ing from  injuries  sustained  in  operation  of  defective 
machinery. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  the  defendant  is,  and  continuously  during  all  the  times 
hereinafter  mentioned  has  been,  a  corporation  organized  under  the 
laws  of  the  state  of  ;  that  it  is,  and  continuously  during  all 
said  times  has  been,  the  owner  and  in  the  possession  of  a  certain 
railroad  known  as  Railroad,  and  of  the  tracks,  cars,  loco- 
motives, rolling-stock,  and  other  equipment  and  appurtenances 
thereto  belonging,  and  is,  and  was  during  all  said  times,  using  the 
same  for  the  transportation  of  goods  and  passengers  for  hire. 

2.  That  the  plaintiff,  on  the  day  of  ,  19  ,  was  in  the 
employ  of  the  defendant,  as  engineer  upon  a  locomotive  steam- 
engine,  used  and  operated  by  defendant  on  its  said  tracks. 

3.  That  said  steam  locomotive  was  defective  and  insecure,  and  the 
boiler  thereof  was  defective,  unsafe,  and  dangerous,  but  of  such 
defects  plaintiff  had  no  knowledge,  nor  means  of  knowledge,  infor- 
mation, or  notice  thereof;  that  by  reason  of  said  defects,  and  by 
reason  of  the  failure,  through  the  carelessness  and  neglect  of  the 
defendant  to  furnish  a  safe  and  secure  steam  locomotive  to  be  used 
by  the  plaintiff  in  his  said  employment,  on  the  said  date,  and 
while  the  plaintiff  was  engaged  in  the  performance  of  his  duties  as 
such  engineer  under  said  employment,  the  boiler  of  said  steam  loco- 
motive exploded,  whereupon  large  quantities  of  steam  and  hot  water 
escaped  therefrom,  and,  without  any  fault  or  negligence  on  his  part, 
plaintiff  was  thereby  severely  scalded  and  injured  about  the  face  and 
hands  and  body. 

4.  That  by  reason  of  said  injuries  sustained  as  aforesaid  plaintiff 
became,  and  for  a  long  time  thereafter  remained,  ill;  that  said 
injuries  sustained  as  aforesaid  are  of  a  permanent  nature,  and  that 
ever  since  receiving  the  same  the  plaintiff  has  been,  and  will  here- 
after be,  prevented  thereby  from  pursuing  his  regular  employment 
or  business;  that  by  reason  of  said  injuries  plaintiff  was  obliged  to 
engage  the  services  of  a  physician,  and  was  further  obliged  to  expend 
in  hospital  service  and  for  medicines  the  sum  of  $  ;  and  that, 


1450  EMPLOYERS'  LIABILITY  CASES,   ETC.  [Tit.  XIII. 

in  all,  the  plaintiff  has  been  damaged  by  the  acts  of  the  defendant 
aforesaid  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  $  , 

and  plaintiff's  costs  of  suit.  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM  No.  862 — By  servant,  to  recover  damages  for  personal  injuries  sus- 
tained from  negligence  of  employer  in  requiring  perform- 
ance of  labor  with  which  the  servant  was  not  familiar. 

(In  Crawford  v.  Bonners  Ferry  L.  Co.,  12  Idaho  678;  87  Pac.  998; 
10  Am.  &  Eng.  Ann.  Cas.  1.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  the  defendant,  and  for  cause  of  action  al- 
leges : 

1-4.  [After  averments  that  the  defendant  is  a  corporation  organ- 
ized and  existing  under  the  laws  of  the  state  of  Wisconsin,  and  doing 
a  sawmill  business  in  Kootenai  County,  state  of  Idaho,  and  that  about 
one  year  prior  to  August  24,  1904,  plaintiff  entered  the  employ  of 
defendant,  as  teamster,  to  haul  and  skid  logs  and  timber  in  the 
forests  owned  and  used  by  defendant  in  connection  with  its  sawmill, 
and  after  describing  apparatus,  machinery,  and  dump-carts  used  for 
the  purpose  of  disposing  of  refuse,  the  complaint  proceeds:] 

5.  That  on  the  day  of  ,  1904,  and  while  plaintiff  was  in 
the  performance  of  his  said  duties  in  hauling  and  skidding  logs  and 
timbers  in  the  forests  of  defendant,  pursuant  to  said  employment, 
the  defendant  directed  and  required  plaintiff  to  suspend  said  work, 
and  to  haul  [etc.,  here  describing  the  work  he  was  required  to  per- 
form] ;  that  thereupon  plaintiff  objected  to  performing  said  last- 
mentioned  service,  and  informed  defendant  that  he  did  not  under- 
stand said  work,  or  the  manner  of  using  dump-carts,  whereupon 
defendant  further  directed  and  required  plaintiff  to  perform  said 
last-mentioned  labor,  and  insisted  that  he  do  so,  and  plaintiff  pro- 
ceeded to  haul  laths  as  directed  by  defendant  as  aforesaid. 

6.  That  it  was  then  and  there,  and  at  all  times,  the  duty  of  the 
defendant  to  furnish,  keep,  and  maintain  a  safe,  sufficient,  and  suit- 
able place  for  plaintiff  to  work  in,  and  to  provide  and  maintain 
sufficient,  suitable,  and  safe  appliances  with  which  to  perform  said 
labor,  and  to  provide  and  maintain  sufficient,  suitable,  and  safe  roads 
over  which  to  haul  said  laths,  but  that,  disregarding  its  duty  in  the 


Ch.  CV.]  COMPLAINTS    [OR  PETITIONS].— FORMS.  1451 

premises  and  in  this  respect,  it  had  knowingly,  carelessly,  and  negli- 
gently caused  said  car  and  box  to  be  so  constructed  that  they  were 
too  low  to  safely  allow  said  dump-cart  to  pass  under ;  *  *  *  and 
defendant  at  all  of  the  times  herein  mentioned,  knowingly,  carelessly, 
and  negligently  kept  and  maintained  them  in  such  unsafe  and  dan- 
gerous condition,  and  knew  of  their  dangerous  and  unsafe  condition, 
and  knew  that  it  was  unsafe  and  dangerous  for  plaintiff  to  haul  said 
laths  with  said  dump-cart,  of  all  of  which  plaintiff  had  no  knowledge ; 
*  *  *  that  said  facts  could  not  be  known  or  determined  by 
plaintiff  from  any  inspection  which  plaintiff  was  permitted  to  make, 
or  was  able  to  make,  before  or  at  the  time  of  performing  said  work 
in  the  performance  of  which  he  was  injured;  *  *  *  that  the 
element  of  danger  resulting,  or  that  might  result,  from  such  condi- 
tions as  aforesaid,  was  a  latent  and  not  an  obvious  danger. 

7.  That  on  the  day  last  aforesaid,  and  while  plaintiff  was  hauling 
said  laths  as  directed  and  required  by  defendant  as  aforesaid,  with- 
out any  assistance,  *  *  *  and  while  he  was  exercising  due  care 
and  caution,  without  any  fault  of  plaintiff,  the  hind  end  of  said  dump- 
cart  struck  against  the  timbers  and  ceiling  of  said  box  over  said 
driveway  thereunder,  and  caused  the  fore  part  of  said  dump-cart  to 
be  suddenly  and  with  great  force  and  violence  raised  and  thrown  up 
to  and  against  said  timbers,  by  reason  of  which  plaintiff  was  caught 
and  held  between  and  against  said  dump-cart  and  timbers,  whereby 
[here  follows  statement  of  injuries  received  and  damages]. 

Wherefore,  plaintiff  demands  judgment  against  the  defendant  in 
the  sum  of  $2,000  damages  as  aforesaid,  and  costs  of  suit,  and  for 
other  and  further  relief.  R.  E.  McFarland, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  863 — Under  employers'  liability  act. 

(In  Mitchell  v.  Colorado  M.  &  E.  Co.,  12  Colo.  App.  277 ;  55  Pac.  736.) x 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

1.  That  the  defendant  is  a  corporation  duly  organized  under  the 
laws  of  the  state  of  Colorado,  and  owns  and  operates  what  are  known 
as  the  New  Lindell  Mills,  situated  in  the  city  of  Fort  Collins,  county 

l  The  complaint  in  form  No.  863,  under  the  employers'  liability  act  (Colo.  Laws 
1893,  p.  129),  was  held  to  state  a  complete  cause  of  action  and  right  of  recovery  by 
the  plaintiff',  under  the  statute  of  1877,  which  is  not  controlled  or  affected  by  the 
act  of  1893  aforesaid.     The  action  is  based  upon  the  plaintiff's  interest  in  the  life 


1452  EMPLOYERS'  LIABILITY  CASES,  ETC.  [Tit.  XIII. 

of  Larimer,  and  state  of  Colorado,  with  its  principal  office  situated 
in  the  city  of  Denver,  and  state  of  Colorado. 

2.  That  at  all  the  times  hereinafter  mentioned  the  defendant  was 
engaged  in  rebuilding  said  mills  at  Fort  Collins,  the  said  mills  having 
been  theretofore  destroyed  by  fire ;  that  at  said  time,  and  for  a  long 
time  prior  thereto,  one  Benjamen  F.  Hottel  was  the  resident  agent 
and  manager  of  said  mills  for  and  on  behalf  of  defendant  company, 
vested  with  general  power  in  th^  management  of  said  mills,  with  the 
right  to  employ  and  discharge  men,  and  direct  and  control  their 
actions  in  and  about  the  working  of  said  mills,  as  well  as  the  rebuild- 
ing of  the  same;  that  said  latter  work,  and  all  work  herein  men- 
tioned, was  under  the  immediate  supervision,  direction,  and  control 
of  said  Hottel,  as  the  resident  agent,  manager,  and  representative  of 
defendant  company. 

3.  That  on  the  7th  day  of  August,  1896,  one  William  M.  Mitchell, 
who  was  then  the  unmarried  son  of  plaintiff,  was  employed  by  de- 
fendant company,  through  its  manager  aforesaid,  to  assist  in  raising 
a  smokestack  at  said  mills. 

4.  That  the  said  William  M.  Mitchell  was  at  that  time  a  few  months 
over  the  age  of  twenty-two  years,  and  had  no  knowledge  or  previous 
experience  with  the  handling  or  raising  of  smokestacks,  and  was 
uninformed  and  unacquainted  with  the  methods  employed  and 
machinery  used  in  conducting  such  operations,  and  relied  upon  the 
knowledge,  judgment,  skill,  and  experience  of  said  manager  Hottel, 
which  he  believed  said  Hottel  possessed. 

5.  That  under  the  direction  of  said  manager  Hottel,  so  acting  for 
and  representing  defendant  company,  a  derrick  was  provided  for 
lifting  said  smokestack  into  position,  which  derrick  had  not  been 
constructed  for  that  purpose,  and  could  not  lift  any  greater  weight 
than  2,500  pounds,  of  which  facts  said  Mitchell  had  no  notice  or 
knowledge. 

6.  That  plaintiff  is  informed  and  believes,  and  so  avers  the  fact  to 
be,  that  the  said  smokestack  weighed  about  4,500  pounds;  that  on 
said  last-mentioned  date,  under  the  direction  of  said  manager  as 

of  the  deceased,  her  direct  dependence  upon  him,  as  his  mother,  for  maintenance 
and  support,  and'  does  not  seek  to  recover  damages  sustained  by  the  deceased 
employee.  Under  the  act  of  1877,  no  notice  was  required  to  be  given  the  employer 
before  such  suit  could  be  maintained.  The  court,  therefore,  held  that  It  was  error 
to  sustain  a  demurrer  to  this  complaint  on  the  ground  of  a  failure  to  allege  such 
notice:  Mitchell  v.  Colorado  M.  &  E.  Co.,  12  Colo.  App.  278,  55  Pac.  736.  (The  form 
as  given  herein  eliminates  several  repetitions  contained  in  the  original  complaint.) 


Ch.  CV.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1453 

aforesaid,  the  said  smokestack  was  connected  with  the  lifting  appa- 
ratus of  said  derrick,  the  block  and  tackle  being  then  unskilfully, 
carelessly,  and  negligently  caused  to  be  attached  to  an  eye-bolt  in 
said  derrick,  so  that  the  whole  of  the  weight  of  said  stack  was  placed 
upon  a  small  bolt;  that  the  said  manager  then  and  there  caused  the 
windlass  to  which  the  rope  was  attached  for  lifting  the  said  stack 
to  be  negligently  and  carelessly  placed  directly  under  the  stack 
between  the  engine-house  and  elevator-building,  so  that  while  said 
stack  was  being  hoisted  it  was  immediately  over  the  heads  of  those 
employed  upon  the  windlass,  and  that  the  said  Mitchell,  having  no 
notice  or  knowledge  that  said  derrick  was  being  used  in  an  unsafe 
manner,  or  that  the  said  manager  had  not  exercised  reasonable  pru- 
dence, skill,  and  judgment  in  providing  and  placing  said  machinery, 
continued  to  work  at  said  lifting  apparatus ;  that  while  so  engaged 
at  the  windlass,  turning  the  same,  and  without  any  fault  or  neglect 
on  his  part,  the  eye-bolt  holding  said  apparatus  to  the  stack  broke, 
and  the  said  stack  fell,  striking  said  Mitchell  and  causing  his  imme- 
diate death. 

7.  That  the  death  of  the  said  William  M.  Mitchell  was  caused  by 
the  negligence  of  the  defendant  company,  and  of  its  manager,  as  its 
principal  representative  as  aforesaid,  in  providing  unsafe  and  defect- 
ive machinery  aforesaid,  and  through  the  grossly  negligent  manner 
and  method  in  which  the  same  was  manipulated  and  used  as  aforesaid. 

8.  That  the  said  William  M.  Mitchell  was  in  sound  bodily  health 
at  the  time  of  his  death,  and  at  the  time  thereof,  and  for  a  long  time 
prior  thereto,  supported  plaintiff  from  his  earnings,  who,  being  ad- 
vanced in  years  and  in  poor  bodily  health,  was  dependent  upon  her 
said  son  for  maintenance  and  support,  and  which  said  earnings  at  the 
time  of  his  death  averaged  $600  per  annum. 

9.  That  the  bonds  of  matrimony  existing  between  plaintiff  and  her 
husband,  Michael  Mitchell,  were  absolutely  dissolved,  by  decree  of 
divorce  duly  given,  made,  and  entered  of  record  in  the  county  court 
of  Jefferson  County,  state  of  Colorado,  on  the  25th  day  of  July,  1882; 
and  in  and  by  the  terms  of  said  decree,  plaintiff  was  given  the  custody 
of  the  minor  children,  William  Mitchell  and  Kate  Mitchell,  and 
charged  with  their  support  and  maintenance,  without  any  allowance 
from  said  Michael  Mitchell. 

10.  That  by  reason  of  the  default  and  negligent  conduct  of  defend- 
ant company,  and  of  its  manager,  as  principal  and  representative,  in 


1454  EMPLOYERS'  LIABILITY  CASES,   ETC.  [Tit.  XIII. 

causing  the  death  of  said  William  M.  Mitchell,  the  plaintiff  has  been 
damaged  in  the  sum  of  $5,000. 

Wherefore,  plaintiff  prays  judgment  against  the  defendant  com- 
pany for  the  sum  of  $5,000,  and  for  costs  of  suit. 

Frank  J.  Annis, 
Garbutt  &  Garbutt, 

Attorneys  for  jlaintiff. 


FORM   No.  864 — By  employer,  for  servant's  negligence. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  on  and  prior  to  the  time  hereinafter  mentioned  the  defend- 
ant was,  at  his  request,  for  reward  to  him,  employed  by  the  plaintiff 
to  [here  state  work  which  the  defendant  was  to  perform],  and  as 
his  servant. 

2.  That  on  the  day  of  ,  19  ,  the  defendant  [here  state 
as  to  work]  in  so  careless  and  improper  a  manner  that  plaintiff  was 
damaged  in  the  following  particulars,  to  wit:  [Here  specify],  and 
thereby  the  plaintiff  lost  [here  state],  and  incurred  divers  expenses, 
to  wit,  $  ,  in  [here  state],  to  the  damage  of  the  plaintiff  in  the 
sum  of  $ 

[Concluding  part.] 

FORM  No.  865 — By  employer,  for  repayment  of  money  advanced  for  seivlces. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
agreed  to  render  his  services  to  the  plaintiff  as  ,  for  the  term 
of  ,  in  consideration  of  $  ,  to  be  paid  therefor  by  the 
plaintiff. 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
advanced  to  the  defendant,  at  his  request,  on  account  of  services  to 
be  thereafter  rendered,  in  pursuance  of  said  agreement,  the  sum  of 

$ 

3.  That  the  defendant  has  wholly  neglected  and  refused  to  render 
such  services,  although  demanded  by  the  plaintiff  so  to  do. 


Ch.  CV.]  ANSWERS.— FORMS.  1455 

4.  That  no  part  of  said  sum  so  advanced  has  been  repaid,  and  the 
whole  thereof  remains  due  and  payable  from  the  defendant  to  the 
plaintiff. 

[Concluding  part.] 


§368.— ANSWERS. 

FORM   No.  866 — Defense  based  upon  failure  of  plaintiff  to  give   notice  pre- 
scribed by  statute  as  condition  precedent  to  action. 

(In  Mathieson  v.  St.  Louis  etc.  R.  Co.,  219  Mo.  542;  118  S.  W.  9.) 

[Title  of  court  and  cause.] 

[After  the  defendant  set  out  a  general  denial  and  plea  of  contrib- 
utory negligence,  and  a  plea  of  assumption  of  risk,  the  defense  based 
upon  failure  to  give  the  statutory  notice  was  alleged  as  follows:] 

4.  For  a  fourth  and  further  answer  and  defense  to  said  amended 
petition,  defendant  avers  that  plaintiff  has  stated  in  said  petition  thai 
he  was  working  for  defendant  in  and  about  its  yards  and  connections 
in  Wyandotte  County,  Kansas,  and  that  at  the  time  he  was  injured 
he  was  working  in  said  Wyandotte  County,  Kansas,  and  the  accident 
of  which  plaintiff  complains  in  his  petition  happened  in  said  county, 
state  of  Kansas;  and  defendant  further  avers  that  the  law  of  the 
state  of  Kansas  set  up  in  said  amended  petition  was  amended  on 
March  4,  1903,  by  the  legislature  of  the  state  of  Kansas,  and,  as 
amended,  and  as  in  force  at  the  time  of  said  accident,  is  as  follows : 
[Here  follows  a  copy  of  the  statute  as  amended,  for  the  wording  of 
which  see  paragraph  1,  annotations  to  this  chapter.] 

Defendant  further  avers  that  plaintiff  has  failed  to  comply  with 
said  law  of  the  state  of  Kansas,  in  that  he  failed  to  give  to  defendant 
within  ninety  days  after  the  occurrence  of  said  accident  any  notice 
of  the  injury  sustained  by  him,  or  any  notice  stating  the  time  and 
place  thereof,  or  the  time  or  place  thereof,  and  that  by  reason  of 
plaintiff's  said  failure  to  give  said  or  any  notice  as  provided  by  said 
statute,  plaintiff  can  not  recover  herein. 

W.  F.  Evans, 
I.  P.  Dana, 
W.  J.  Orr, 

[Concluding  part.]  Attorneys  for  plaintiff. 


1456  EMPLOYERS'  LIABILITY  CASES,  ETC.  [Tit.  XIII. 

FORM   No.  867 — Denial,  and  defense  of  contr'jrytory  negligence  and  assumed 
risk. 

[Title  of  court  and  cause.] 

Now  comes  the  defendant  in  the  above-entitled  action  and  answers 
the  complaint  of  plaintiff  on  file  herein  as  follows: 

1.  Defendant  denies  each  and  every  allegation  in  said  complaint 
contained.  [If  the  complaint  be  verified,  or  if  required  by  statute, 
make  denials  specific] 


[Defense  of  contributory  negligence  and  assumed  risk.] 
For  a  further  and  separate  defense,  defendant  alleges: 

1.  That  plaintiff's  duties  in  working  in  or  upon  [here  describe  the 
work  in  which  defendant  was  engaged  under  the  direction  of  plaint- 
iff] did  not  require  him  to  go  to  the  place  or  to  come  in  contact  with 
the  machinery  [or  apparatus,  etc.,  causing  the  injury],  and  therefore 
the  injury  alleged  to  have  been  suffered  by  plaintiff  in  his  complaint 
herein  was  consequent  upon,  and  due  to  plaintiff's  own  carelessness 
and  negligence,  and  not  to  that  of  the  defendant. 

2.  That  the  said  machinery  [or  other  apparatus,  describing  it] 
was  in  plain  view  of  the  plaintiff  when  he  entered  defendant's  serv- 
ice, and  so  remained  during  all  the  time  of  his  employment,  and,  with 
full  notice  and  knowledge  of  its  construction,  condition,  and  opera- 
tion, defendant  voluntarily  entered  upon  the  work  which  he  was 
employed  to  do,  and  continued  therein  until  the  time  of  his  accident 
without  objection  or  complaint,  and  thereby  waived  the  duty  of 
defendant  to  otherwise  safeguard  said  machinery  [or  other  appara- 
tus, etc.],  and  defendant  assumed  all  risk  incident  thereto. 

Wherefore,  defendant  prays  that  plaintiff  take  nothing  by  his- 
action  herein,  and  that  defendant  be  given  judgment  for  his  costs. 

C.  D.,  Attorney  for  defendant. 
[Verification.] 

For  annotations  as  to  the  defense  of  contributory  negligence  generally,  see  ch, 
CXI,  paragraphs  20  to  30. 


€h.  CV.]  ANSWERS.— FORMS.  1457 

FORM   No.  868 — Defenses — (1)    contributory  negligence  of  plaintiff,  and    (2) 
negligence  of  fellow-servant  of  plaintiff. 

(Cragg  v.  Los  Angeles  Trust  Co.,  154  Cal.  663;  98  Pac.  1063.) 
[Title  of  court  and  cause.] 

Comes  now  the  defendant,  and  for  answer  to  plaintiff's  complaint: 
1-3.   [After  specific  denials  of  the  averments  of  the  complaint,  the 
following  defenses  are  set  out:J 

[Defense  of  contributory  negligence.] 

4.  And  for  a  second  and  further  defense  to  plaintiff's  alleged 
cause  of  action,  defendant  alleges  that  the  alleged  injury  and  damage 
to  plaintiff  was  proximately  caused  by  his  own  negligence  and  want 
of  care. 

[Defense  of  negligence  of  fellow-servant  of  plaintiff.] 

5.  And  for  a  third  and  further  defense  to  plaintiff's  alleged  cause 
of  action,  defendant  alleges  that  the  accident  referred  to  in  plaintiff's 
complaint,  and  the  injury  and  damage  to  the  plaintiff  alleged  to  have 
resulted  therefrom,  were  caused  by  the  negligence  and  want  of  care 
of  a  fellow-servant  of  plaintiff,  who  at  the  time  of  the  happening  of 
said  accident  was  engaged  with  the  plaintiff  in  the  same  general 
business  of  this  defendant,  and  without  any  fault  or  negligence  on 
the  part  of  this  defendant. 

Wherefore,  the  defendant  prays  that  plaintiff  take  nothing  by  this 
action,  and  that  defendant  recover  its  costs  and  disbursements. 

Hunsaker  &  Britt, 
[Verification.]  Attorneys  for  defendant. 

Form  of  complaint  in  an  action  for  damages  for  injuries  caused  by  the  negligence 
of  employer:  Trihay  v.  Brooklyn  Lead  Min.  Co.,  4  Utah  468,  482,  11  Pac.  612,  618, 
15  Morr.    Min.    Rep.   535. 

Form  of  complaint  in  an  action  by  a  day  laborer,  against  his  employer,  a  railroad 
company,  for  damages  for  breach  of  contract,  and  negligence,  in  that  defendant 
failed  to  supply  him  with  good  and  suitable  board  and  lodging:  Clifford  v.  Denver 
S.  P.  &  P.  R.  Co.,  9  Colo.  333,  12  Pac.  219. 

Form  of  petition  in  an  action  by  a  brakeman  against  a  railroad  company  for 
personal  injuries  received  in  stepping  from  a  car  for  the  purpose  of  turning  a 
switch:  Kansas  City  etc.  R.  Co.  v.  Kier,  41  Kan.  661,  21  Pac.  770,  771,  13  Am.  St. 
Rep.   311. 

Form  of  petition  in  an  action  for  damages  for  a  personal  injury  caused  by  the 
alleged  negligence  of  plaintiff's  co-employees:  Union  Pacific  R.  Co.  v.  Harris  33 
Kan.  416,  6  Pac.   571. 


M53  EMPLOYERS'  LIABILITY  CASES,   ETC.  [Tit.  XIII. 

Form  of  petition  in  an  action  for  damages  for  personal  injuries  received  by 
plaintiff  on  account  of  the  alleged  negligence  of  defendant  in  providing  for  her  use. 
as  an  employee,  defective  and  dangerous  machinery:  Hoepper  v.  Southern  Hotel 
Co.,   142  Mo.  378,  44  S.  W.  257. 

Form  of  petition  in  an  action  to  recover  damages  for  personal  injuries  alleged  to 
have  been  received  by  the  plaintiff  while  in  the  employ  of  the  defendant:  Atchison 
etc.  R.  Co.  v.  Ledbetter,  34  Kan.  326,  8  Pac.  411. 

Form  of  petition  in  an  action  by  a  brakeman  against  a  railway  company  to  recover 
damages  for  injuries  received  while  in  the  performance  of  his  duties,  through  the 
negligence  of  the  company's  inspector:  Missouri  Pacific  R.  Co.  v.  Dwyer,  36  Kan. 
58,   59,   12  Pac.   352,   353. 

Form  of  petition  in  an  action  for  personal  injuries  caused  by  the  alleged  negli- 
gence of  the  defendant  in  providing  an  unsafe  hand  car:  Solomon  R.  Co.  v.  Jones, 
34  Kan.  443,  455,  8  Pac.  730,  732. 

Form  of  petition  in  an  action  for  damages  for  personal  injuries  resulting  from  the 
negligence  of  the  defendant  in  not  furnishing  safe  tools:  Atchison  etc.  R.  Co.  v. 
Sadler,  38  Kan.   128,   129,   16   Pac.   46,   5  Am.   St.   Rep.   729. 

Form  of  petition  in  an  action  for  damages  for  personal  injuries  received  by 
plaintiff  while  engaged  in  the  capacity  of  a  workman  and  employee  of  the  defendant 
in  the  sinking  of  a  shaft:  Morbach  v.  Home  Mining  Co.,  53  Kan.  731,  732,  37  Pac. 
122,   123. 

Form  of  petition  in  an  action  for  damages  for  the  alleged  wilful  negligence  and 
misconduct  of  the  defendants  towards  the  plaintiff's  minor  child  while  she  was 
in  the  service  of  the  defendants:  Larson  v.  Berquist,  34  Kan.  334,  335,  8  Pac.  407, 
55  Am.    Rep.   249. 

For  the  substance  of  averments  charging  the  defendant  with  negligence  in  the 
operation  of  an  elevator,  the  plaintiff  having  suffered  personal  injuries  while  in  the 
employ  of  the  defendants,  held  sufficient  to  admit  of  proof  of  negligence  of  the 
defendant,  although  the  petition  might  have  been  more  skilfully  drawn,  see  Modlin 
v.  Jones  &  Co.,   84  Neb.  551,   121  N.  W.   984,   9S7. 

For  a  form  of  complaint  in  an  action  for  personal  injuries  caused  by  the  alleged 
negligent  operation  of  a  railroad  in  a  logging-camp,  held  sufficient  as  against  a 
general  demurrer,  notwithstanding  its  deficiency  in  logical  order  and  technical 
language,  and  notwithstanding  its  somewhat  vague  statements,  see  Vukelis  v. 
Virginia  L.  Co.,  107  Minn.  6S,  119  N.  W.  509. 

Form  of  instructions  to  jury  in  an  action  for  damages  for  injuries  caused  by  the 
explosion  of  an  engine:  Mulligan  v.  Montana  Union  R.  Co.,  19  Mont.  135,  47  Pac. 
795,  797. 

§369.     ANNOTATIONS. — Employers'    liability    cases,    and    actions    against 
employees. 

1.  Notice  as  condition  precedent. — Kansas  statute. 

2.  Complaint  in  action   for  negligence  held  sufficient. 

3.  Insufficient  showing  of  negligence. 

4,  5.  Defense    of    assumption    of    risk. — Distinguished    from    contributory    negli- 
gence. 

6.  Risk,  when  deemed  assumed. 

7.  Burden  of  proof  as  to  assumed  risk. 

8.  Instruction  based  upon  assumed  risk. 
9,  10.  Negligence   of  fellow-servant. 

11.  Liability  of  servant  to  master  for  acts  of  servant's  minor  children. 

1.  Notice  as  condition  precedent. —  precedent  to  the  commencement  of  an, 
Kansas  statute. — The  giving  of  a  notice,  action  for  negligence,  etc.,  is  one  of  the 
where  reauired  by  statute  as  a  condition       essential  elements  of  the  plaintiff's  case. 


Ch.  CV.] 


ANNOTATIONS. 


1459 


Without  that  allegation  the  petition  Is 
fatally  defective,  and  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action: 
Mathieson  v.  St.  Louis  etc.  R.  Co.,  219 
Mo.  542,  118  S.  W.  9,  10,  citing  the  Kan- 
sas statute,  the  same  being  that  upon 
which  this  action  was  based,  as  amended 
on  March  4,  1903,  and  which  reads  as 
follows:  "Every  railroad  company  or- 
ganized or  doing  business  in  this  state 
shall  be  liable  for  all  damages  done  to 
any  employee  of  said  company  in  conse- 
quence of  any  negligence  of  its  agents, 
or  by  any  mismanagement  of  its  engi- 
neers, or  other  employees,  to  any  person 
sustaining  such  damage;  provided,  that 
notice  in  writing  of  the  injury  so  sus- 
tained, stating  the  time  and  place  thereof, 
shall  have  been  by  or  on  behalf  of  the 
person  injured  to  such  railroad  company 
within  ninety  days  after  the  occurrence 
of  the  accident." 

2.  A  complaint  In  an  action  for  dam- 
ages for  personal  injury  received  by 
plaintiff  while  in  defendant's  employ  as 
a  teamster  held  sufficient  as  against  a 
general  demurrer  thereto,  there  being  no 
criticism  in  these  particulars,  although 
the  same  was  uncertain  and  indefinite  in 
some  of  its  allegations,  and  held,  also, 
a  judgment  for  defendant,  on  sustaining 
the  demurrer,  was  erroneous.  The  fol- 
lowing is,  in  brief,  a  statement  of  the 
facts  alleged:  The  defendant  corpora- 
tion owns  and  conducts  a  foundry  and 
machine-shop  in  the  city  of  Butte.  The 
plaintiff  was  at  the  time  he  was  injured 
in  its  employ,  as  a  teamster,  and  in  this 
capacity  his  office  was  to  haul  from 
place  to  place  about  the  premises  heavy 
machinery  and  castings  whenever  in  the 
course  of  defendant's  operations  it  be- 
came necessary.  On  August  1,  1904,  he 
was  directed  to  move  from  the  foundry 
to  the  machine-shop  an  iron  casting 
weighing  about  1,500  pounds.  Having 
loaded  it  upon  his  wagon  and  hauled  it  to 
the  place  designated  in  the  machine- 
shop,  he  was  engaged  in  unloading  and 
lowering  it  to  the  floor.  To  enable  him 
to  do  this,  he  was  furnished  with  an  ap- 
pliance consisting  of  a  crane,  blocks,  and 
a  chain.  The  process  of  unloading  was 
intended  to  be  accomplished  by  first  lift- 
ing the  casting  from  the  wagon  by  means 
of  the  appliance  mentioned,  and  holding 
It  suspended  from  the  chain  until  the 
wagon  was  removed,   and  then  lowering 


the  casting  to  the  floor.  The  unloading 
had  been  accomplished  up  to  the  point 
when  it  became  necessary  to  lower  the 
casting.  It  was  then  suspended  about 
five  feet  from  the  floor.  To  effect  this  it 
was  necessary  that  the  appliance  be 
loosened,  presumably  so  that  the  chain 
would  run  through  the  blocks,  and  thus 
allow  the  casting  to  descend  gradually, 
under  plaintiff's  control.  While  the 
plaintiff  was  in  the  act  of  adjusting  the 
appliance  in  order  to  lower  the  casting, 
it  became  necessary  for  him  to  take  hold 
of  it  for  that  purpose.  The  chain,  blocks, 
and  the  casting  fell  upon  his  right  leg, 
so  crushing  and  mangling  it  that  ampu- 
tation became  necessary.  [The  negli- 
gence with  which  defendant  is  charged 
is  alleged  as  follows:]  That  said  chain 
so  around  said  casting,  and  which  was  so 
furnished  to  this  plaintiff  for  such  use 
was  wholly  insufficient  and  unsafe  in 
this,  to  wit,  that  the  same  was  not  of 
sufficient  size  to  hold  or  bear  the  weight 
of  said  casting,  and  by  reason  thereof  it 
was  not  of  such  strength  as  was  re- 
quired for  such  casting,  and  was  too 
weak  to  hold  the  same,  all  of  which  was 
well  known  to  said  defendant,  and  of 
which  this  plaintiff  was  ignorant.  Plaint- 
iff further  alleges  that  defendant  was 
guilty  of  gross  negligence  in  not  furnish- 
ing plaintiff  a  sound,  safe,  and  substan- 
tial chain  with  which  to  handle  said 
casting,  and  that  but  for  the  gross  care- 
lessness and  negligence  of  defendant  in 
this  regard  plaintiff  would  not  have  re- 
ceived said  injury.  Plaintiff  further  al- 
leges that  said  appliance,  consisting  of 
crane,  blocks,  and  chain,  were  the  prop- 
erty of  defendant,  and  were  furnished 
for  use  by  defendant,  and  that  plaintiff 
used  the  same  under  the  direction  and 
orders  of  defendant.  [It  was  then  al- 
leged that,  by  reason  of  the  injury  thus 
suffered,  the  plaintiff  was  permanently 
disabled,  that  he  suffered  great  mental 
and  physical  pain  and  anguish,  and  that 
he  was  put  to  expense  for  medical  treat- 
ment, etc.]:  Schroder  v.  Montana  Iron 
Works,  38  Mont.  474,  100  Pac.  619,  620. 

3.  Insufficient  showing  of  negligence. — 
A  complaint  in  an  action  brought  to  re- 
cover personal  damages  suffered  by  the 
plaintiff  while  In  the  employment  of  the 
defendants,  and  alleged  to  have  been 
caused  by  their  negligence  in  numerous 
particulars  specified,   which  contains  no 


1460 


EMPLOYERS'   LIABILITY  CASES,   ETC. 


[Tit.  XIII. 


further  specification  of  the  negligence 
than  that  the  same  was  committed  "by 
the  defendants  and  their  servants,"  is 
wholly  insufficient,  for  the  reason  that 
from  this  allegation  it  does  not  appear 
that  the  plaintiff  himself  was  not  the 
servant  whose  negligence  caused  the  ac- 
cident: Schreiner  v.  Grant  Brothers,  3 
Cal.  App.  661,  662,  86  Pac.  912,  (to  re- 
cover personal  damages  for  negligence). 

4.  The  defense  of  assumption  of  risk  is 
affirmative  in  character,  and  must  be 
pleaded  specifically  before  it  can  be 
availed  of  by  the  defendant:  Coulter  v. 
Union  Laundry  Co.,  34  Mont.  590,  87 
Pac.  973;  Nord  v.  Boston  etc.  Co.,  33 
Mont.  464,  84  Pac.  1116,  89  Pac.  647; 
Longpre  v.  Big  Blackfoot  M.  Co.,  38 
Mont.  99,  99  Pac.  131,  132. 

5.  Assumption  of  risk  and  contributory 
negligence  are  separate  defenses,  and 
while  it  frequently  happens  that  there  is 
no  practical  importance  in  distinguishing 
the  two  where  the  same  state  of  facts 
would  make  out  a  defense,  whether 
called  by  the  one  name  or  the  other,  yet 
they  rest  upon  different  bases,  and  each 
should  be  approached  from  a  different 
viewpoint.  Of  course,  where  the  danger 
is  obvious  the  two  defenses  are  tested  by 
the  same  standard  in  that  particular, 
and  the  differences  are  more  theo- 
retical than  practical:  Johnson  v.  Mam- 
moth Vein  Coal  Co.,  88  Ark.  243,  114  S. 
W.  722,  724,  123  S.  "W.  1180;  Choctaw  etc. 
R.  Co.  v.  Jones,  77  Ark.  367,  92  S.  W. 
244,  4  L.  R.  A.  (N.  S.)  837,  7  Am.  &  Eng. 
Ann.  Cas.  430;  St.  Louis  etc.  R.  Co.  v. 
Mangan,  86  Ark.  507,  112  S.  W.  168,  13 
Ark.  Law  Rep.  545;  Narramore  v.  Cleve- 
land etc.  R.  Co.,  37  C.  C.  A.  499,  96  Fed. 
298,  48  L.  R.  A.  68. 

6.  Risk,  when  deemed  assumed. — The 
risk  where  obvious  is  deemed  to  have 
been  assumed  by  the  plaintiff:  Jones  v. 
Pioneer  Cooperage  Co.,  134  Mo.  App.  324, 
114  S.  W.  94,  96;  Knorpp  v.  Wagner,  195 
Mo.  637,  93  S.  W.  961;  Beasley  v.  Linahan 
Transfer  Co.,  148  Mo.  413,  50  S.  W.  87; 
Bradley  v.  Railway,  138  Mo.  293,  39  S.  W. 
763;  Lee  v.  Railroad,  112  Mo.  App.  372,  87 
S.  W.  12. 

7.  Burden  of  proof  as  to  assumed  risk. 
—Where  the  defendant  pleads  assump- 

lon  of  risk  by  the  plaintiff  because  of  his 
alleged  continuance  in  a  place  of  danger 
while  In  the  defendant's  employ,  and 
pleads  plaintiff's  knowledge  of  the  risk, 


the  burden  is  upon  the  defendant  to  es- 
tablish by  a  preponderance  of  the  evi- 
dence that  the  plaintiff  knew  and  appre- 
ciated the  peril  to  which  he  was  exposed: 
Cinkovitch  v.  Thistle  Coal  Co.,  143  Iowa, 
595,  121  N.  W.  1036,  1038,  citing  upon  the 
point  that  knowledge  and  appreciation 
of  the  risk  are  always  essential  elements 
in  the  servant's  assumption  of  risks  aris- 
ing from  his  alleged  negligence:  Long  v. 
Johnson,  134  Iowa  336,  111  N.  W.  984; 
Cushman  v.  Carbondale  Co.,  116  Iowa 
618,  88  N.  W.  817;  Vohs  v.  Shorthill,  124 
Iowa  471,  100  N.  W.  495;  Calloway  v. 
Agar,  129  Iowa  1,  104  N.  W.  721;  Mace  v. 
Boedker,  127  Iowa  721,  104  N.  W.  475; 
Gorham  v.  Stockyards  Co.,  118  Iowa  749, 
92  N.  W.  698;  Huggard  v.  Glucose  Co., 
132  Iowa  724,   109  N.  W.   475. 

8.  An  instruction  based  upon  an  as- 
sumed risk  in  an  action  to  recover  dam- 
ages for  negligence  is  improper  where 
the  defense  of  assumed  risk  is  not 
pleaded:  Lewis  v.  Texas  etc.  R.  Co. 
(Tex.  Civ.  App.),  122  S.  W.  605,  606,  cit- 
ing International  etc.  R.  Co.  v.  Harris, 
95  Tex.  346,  67  S.  W.  315;  Missouri  etc. 
R.  Co.  v.  Jones,  35  Tex.  Civ.  App.  584,  8<J 
S.  W.  852. 

9.  Negligence  of  fellow  servant. — By  a 
Missouri  statute,  the  defense  based  upon 
negligence  of  a  fellow-servant  is  taken 
away  where  the  conditions  and  circum- 
stances are  such  as  the  statute  provides: 
Lewis  v.  Wabash  R.  Co.,  142  Mo.  App. 
585,  121  S.  W.  1091,  1092. 

10.  Negligence  of  a  helper  or  fellow- 
servant  is  a  defense  of  the  same  nature 
as  that  of  assumption  of  risk,  and  can  be 
availed  of,  if  at  all,  only  by  special  alle- 
gation: Longpre  v.  Big  Blackfoot  M.  Co., 
38  Mont.  99,  99  Pac.  131,  132.  See  Duff 
v.  Willamette  Steel  Works,  45  Ore.  479, 
78  Pac.  363,  668;  Laying  v.  Mt.  Shasta 
M.  S.  Co.,  135  Cal.  141,  67  Pac.  48;  Ell  v. 
Northern  Pacific  R.  Co.,  1  N.  Dak.  336, 
48  N.  W.  222,  26  Am.  St.  Rep.  621,  12  U 
R.  A.  97. 

11.  Liability  of  servant  to  master  for 
acts  of  servant's  minor  children. — The 
liability  of  a  parent  for  the  act  of  a 
minor  child  is  held  to  rest  upon  the  same 
basic  facts  as  the  liability  of  a  master 
for  the  acts  of  his  servant,  and  does  not 
result  from  the  fact  of  the  tort  or  act 
being  purposely  or  wilfully  done,  but 
from  its  being  done  in  doing  the  master's 
or  servant's  business.     Hence,  in  an  ac- 


Vh.  CVI.] 


COMPLAINTS    [OR   PETITIONS].— FORMS. 


1461 


tlon  brought  against  a  parent  to  recover 
damages  resulting  from  a  Are  caused  by 
nis  minor  child,  if  the  act  complained  of 
uj  the  setting  of  a  Are,  it  is  not  a  suffi- 
cient pleading  of  liability  that  the  serv- 
ant or  child  was  engaged  in  the  business 
of  the  master  of  the  parent;  but  it  must 
appear  that  the  setting  of  the  fire  was 


a  part  of  that  business,  or  resulted  from 
some  act  done  in  the  performance  of 
such  business:  Mirick  v.  Suchy,  and 
Barry  v.  Suchy,  74  Kan.  715,  87  Pac. 
1141,  1142,  11  Am.  &  Eng.  Ann.  Cas.  366, 
(against  parent  for  damages  caused  by 
negligence  of  minor  child). 


CHAPTER  CVI. 

Negligence  of  Various  Persons  Owing  a  Contractual  Duty. 

Page 

f  370.  Complaints   [or  petitions] 1461 

Form  No  869.  Against  attorney,  for  negligent  prosecution  of 

suit   1461 

Form  No.  870.  Against  attorney,  for  negligent  defense  of  an 

action 1462 

Form  No.  871.  Against  an  agent,  for  carelessly  selling  to  an 

insolvent    1463 

Form  No.  872.  Against  an  agent,   for  negligent  delay  in  the 

sale  of  goods 1463 

Form  No.  873.  Against  negligent  bailee  1463 

Form  No.  874.  Against  a  physician,  for  malpractice 1464 

Form  No.  875.  Against  a  surgeon,  for  malpractice 1464 

Form  No.  876.  For  negligence  of  a  dentist 1465 

Form  No.  877.  For  negligence  of  grocer  in  selling  a  dangerous 

explosive   1466 

Form  No.  878.  By    servant,    for    damages    caused    by    vicious 

animal 1468 

Form  No.  879.  To  recover  damages  against  abstracters  of  title 

for  negligence  in  reporting  upon  title  to  real 

property  1469 


§370.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  869 — Against  attorney,  for  negligent  prosecution  of  a  suit. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 
1.  That  the  defendant  is,  and  at  the  times  hereinafter  mentioned 
was,  an  attorney  of  the  court  of  this  state;  that  the  plaintiff 

on  or  about  the  day  of  ,  19     ,  retained  and  employed  the 

defendant  as  such  attorney,   to  prosecute  and  conduct  a   certain 
action  in  the  court  of  the  county  of  ,  state  aforesaid, 

on  behalf  of  this  plaintiff,  against  one  L.  M.,  for  the  recovery  of 

Jury's  PI.— 93. 


1462  NEGLIGENCE.— CONTRACTUAL   DUTY,   ETC.  [Tit.  XIII. 

$  ,  due  from  him  to  this  plaintiff;  that  the  defendant  then  and 

there  accepted  and  entered  upon  such  retainer  and  employment,  and 
undertook  to  prosecute  said  action  in  a  proper,  skilful,  and  diligent 
manner,  as  the  attorney  of  the  plaintiff. 

2.  That  the  defendant  might,  in  case  he  had  prosecuted  said  action 
with  due  diligence  and  skill,  have  obtained  final  judgment  therein 
for  this  plaintiff  before  the  day  of  ,  19     ,  but  not  regard- 

ing his  duty  or  employment,  he  so  negligently  and  unskilfully  con- 
ducted said  action,  that  by  his  negligence,  delay,  and  want  of  skill, 
he  did  not  obtain  judgment  until  the  day  of  ,  19     ,  and 

that  meanwhile  the  said  L.  M.  had  become  insolvent ;  whereby  the 
plaintiff  was  hindered  and  deprived  of  the  means  of  recovering  said 
sum  of  money ;  that  the  same  has  not,  nor  has  any  part  thereof,  been 
recovered  or  made  by  the  plaintiff,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  870 — Against  attorney,  for  negligent  defense  of  an  action. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [Allegation  of  employment  of  attorney  to  defend,  etc.  For 
general  averments  see  paragraph  1,  preceding  form.] 

2.  That  such  proceedings  were  had  in  such  action  that  afterwards, 
to  wit,  on  the  day  of  ,  19  ,  it  became  and  was  the  duty 
of  the  defendant,  under  and  by  virtue  of  his  said  retainer  and  his 
said  promise  and  undertaking  [to  interpose  a  proper  and  sufficient 
answer  to  the  complaint  therein],  but  he  wholly  omitted  and  neg- 
lected so  to  do,  and  by  reason  thereof,  and  by  and  through  the  neg- 
lect and  default  of  the  said  defendant  in  that  behalf  [judgment  by 
default  was  obtained  in  the  said  action  against  plaintiff,  and  by 
reason  thereof  plaintiff  was  compelled  to  pay  the  said  L.  M.  $  , 
the  sum  so  recovered  by  him],  and  also,  by  reason  of  the  premises, 
plaintiff  was  put  to  costs  and  charges  in  and  about  his  endeavoring 
to  defend  the  said  action,  amounting  in  the  whole  to  a  large  sum  of 
money,  to  wit,  $  ,  and  has  lost  and  been  deprived  of  the  means 
of  recovering  the  same  back  from  the  said  L.  M.,  to  the  damage  of 
the  plaintiff  in  the  sum  of  $ 

[Concluding  part.] 


Ch.  CVL]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1463 

FORM   No.  871 — Against  an  agent,  for  carelessly  selling  to  an  insolvent. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
undertook  with  and  for  the  plaintiff,  as  his  agent,  and  for  compensa- 
tion to  be  paid  by  him,  to  sell  goods  belonging  to  the  plaintiff,  to  wit, 
[designating  goods,]  of  the  value  of  $  ,  and  thereupon  received 
the  same  from  him  for  that  purpose. 

2.  That  the  defendant  did  not  use  due  diligence  in  the  sale  of  the 
same,  but  carelessly  and  negligently  sold  the  said  goods  for  the 
plaintiff  to  a  person  who  was  then  and  ever  since  has  been,  insolvent, 
defendant  then  well  knowing  said  person's  financial  condition,  and 
without  receiving  the  price  therefor,  or  taking  security  for  the  pay- 
ment thereof;  whereby  the  plaintiff  has  lost  said  goods  and  the  value 
thereof,  to  the  damage  of  the  plaintiff  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  872 — Against  an  agent,  for  negligent  delay  in  the  sale  of  goods. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [Averment  as  to  employment.] 

2.  That  the  defendant  failed  to  use  due  diligence  to  sell  said 
goods,  but,  on  the  contrary,  unreasonably  delayed  so  to  do,  by 
reason  whereof  the  same  were  afterwards  sold  by  the  defendant  for 
the  plaintiff,  and  produced  $  less  than  the  same  would  have 
produced  had  the  defendant  used  due  diligence  in  selling  the  same ; 
that  by  reason  of  defendant's  said  negligence  the  plaintiff  incurred 
$  expenses  in  storing  the  same,  to  plaintiff's  damage  in  the 
total  sum  of  $ 

[Concluding  part.] 

FORM   No.  873 — Against  negligent  bailee. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  the  plaintiff,  on  or  about  the  day  of  ,  19     ,  at 

,  at  the  special  instance  and  request  of  the  defendant,  caused 

to  be  delivered  to  defendant  [a  certain  piano],  the  property  of  the 

plaintiff,  of  the  value  of  $  ,  to  be  taken  care  of  and  safely  and 

securely  kept  by  defendant  for  the  plaintiff. 


1464  NEGLIGENCE.— CONTRACTUAL   DUTY,   ETC.  [Tit.  XIII. 

2.  That  the  defendant  undertook  and  then  and  there  agreed  with 
the  plaintiff  to  take  due  and  proper  care  of  the  said  [piano]  for  the 
plaintiff,  and  to  redeliver  the  same  to  the  plaintiff,  to  wit,  at 

3.  That  the  defendant,  not  regarding  his  duty  in  that  behalf,  did 
not  take  due  or  proper  care  of  the  said  [piano],  nor  did  he,  when 
he  was  so  requested  as  aforesaid,  or  at  any  time,  redeliver  the  same 
to  the  plaintiff;  that  by  and  through  the  carelessness,  negligence, 
and  improper  conduct  of  the  defendant,  the  said  [piano]  became 
and  was  wholly  lost  to  the  plaintiff  [or  damaged,  as  the  case  may 
be],  to  plaintiff's  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  874 — Against  a  physician,  for  malpractice. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  defendant  being  then 
a  physician,  the  plaintiff,  at  defendant's  request,  employed  the 
defendant  as  such  physician  for  a  reward,  to  attend  on  and  admin- 
ister medicines  to,  and  endeavor  to  cure  the  plaintiff  of  a  malady 
from  which  he  then  suffered. 

2.  That  the  defendant  then  entered  upon  such  employment,  but 
did  not  use  due  and  proper  care  or  skill  in  endeavoring  to  cure  the 
plaintiff  of  the  said  malady,  in  this  [state  wherein  the  want  of  skill 
was,  and  the  acts  of  negligence]. 

3.  That  by  reason  of  the  premises  the  plaintiff  was  injured  in  his 
health  and  constitution,  suffered  great  pain,  and  was  unable  to 
attend  his  business  for  months,  and  has  been  greatly  injured  in 
health,  and  was  obliged  to  incur  an  expense  of  $  in  endeavor- 
ing to  be  cured  of  said  sickness,  which  was  prolonged  and  increased 
by  said  negligence  and  improper  conduct  of  the  defendant,  to  the 
damage  of  the  plaintiff  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  875 — Against  a  surgeon,  for  malpractice. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  on  the  day  of  ,  19     ,  the  plaintiff  broke  and 

fractured  the  bones  of  his  right  leg,  and  on  the  said  day,  the  defend- 
ant, holding  himself  out  as  a  surgeon,  the  plaintiff  employed  him  as 


Ch.  CVI.]  COMPLAINTS    [OR  PETITIONS].— FORMS.  1465 

such  surgeon,  for  reasonable  reward  to  be  paid  therefor,  to  set  said 
broken  bones  in  their  proper  place,  and  to  attend  on  the  plaintiff 
until  he  should  be  cured. 

2.  That  the  defendant  thereupon  entered  upon  said  employment, 
but  was  so  negligent  and  unskilful  in  setting  said  bones,  and  in 
attempting  to  reduce  said  fracture,  and  in  attending  and  dressing 
said  leg,  that  [state  the  consequences]. 

3.  That  by  reason  of  said  negligence  and  unskilfulness,  [set  out 
the  special  damages],  to  the  damage  of  the  plaintiff  in  the  sum  of 

$ 

[Concluding  part.] 

FORM   No.  876 — For  negligence  of  a  dentist. 

(In  McGehee  v.  Schiffman,  4  Cal.  App.  50;  87  Pac.  290. )x 

[Title  of  court  and  cause.] 

Comes  now  the  above-named  plaintiff  and,  with  leave  of  court  first 
had  and  obtained,  files  this  her  amended  complaint,  and  for  cause  of 
action  alleges : 

1.  That  the  defendant,  A.  F.  Schiffman,  at  all  the  times  mentioned 
in  this  her  amended  complaint,  was  a  dentist,  professing  and  prac- 
tising in  the  city  of  Los  Angeles,  county  of  Los  Angeles,  state  of  Cali- 
fornia, and  was  at  all  the  said  times,  and  is  now,  obtaining  and  doing 
business,  and  carrying  on  said  profession  and  practice  of  dentistry 
in  said  city,  county,  and  state,  under  the  name  and  style  of  the 
Schiffman  Method  Dental  Company;  that  the  said  A.  F.  Schiffman 
is  the  owner  and  sole  proprietor  of  said  company. 

2.  That  on  the  7th  day  of  December,  1903,  the  plaintiff  Olive  C. 
McGehee,  visited  the  place  of  business  of  defendant  in  said  city 
and  consulted  with  defendant  regarding  her  teeth,  and  defendant 
then  and  there,  and  for  a  pecuniary  consideration  or  reward,  did 
assume  and  undertake  to  extract  from  her  jaws  and  to  remove  from 
her  mouth  certain  of  her  teeth ;  and  did  then  and  there  extract  seven 
of  said  teeth  and  remove  all  of  the  same  from  her  mouth,  excepting 
one  of  said  teeth,  which  by  defendant's  carelessness,  negligence,  and 
unskilfulness  was  permitted  and  allowed  by  him  to  drop  and  pass 
into  plaintiff's  right  lung,  without  any  fault  or  negligence  on  her 
part,  where  said  tooth  remained  for  a  long  period  of  time,  to  wit, 

i  This  complaint,  form  No.  876,  was  held  by  the  court  as  sufficient,  and  in  no 
sense  as  ambiguous  or  uncertain:     McGehee  v.  Schiffman,  4  Cal.  App.  50,  87  Pac.  290. 


1466  NEGLIGENCE.— CONTRACTUAL   DUTY,   ETC.  [Tit.  XIII. 

from  said  December  7,  1903,  until  August  21,  1904,  whereby,  and  by 
reason  whereof,  plaintiff  was  permanently  injured  in  her  health  and 
body,  and  especially  in  her  said  lung,  and  by  reason  thereof  became 
permanently  sick,  sore,  diseased,  and  disabled,  and  suffered,  and  con- 
tinued to  suffer,  great  mental  anguish  and  distress  and  physical  pain, 
and  ever  since  said  time  of  said  operation  by  defendant,  and  by 
reason  thereof,  she  has  been  declining  in  health  and  bodily  vigor, 
whereas  at  all  times  for  many  years  prior  and  up  to  the  time  of  said 
operation  performed  by  defendant,  she,  plaintiff,  had  been  in  good, 
sound  bodily  health,  and  able  to  do  and  perform,  and  did  do  and 
perform,  all  her  necessary  and  proper  household  and  family  duties, 
labor,  and  service,  but  which  now,  and  ever  since  said  time  of  said 
operation,  and  by  reason  thereof,  she  is  unable  to  do  or  perform. 

3.  That  by  reason  of  the  premises,  and  of  said  negligence,  careless- 
ness, and  unskilfulness  on  the  part  of  defendant  in  said  operation, 
the  plaintiff  was  compelled  to  pay,  and  did  pay,  the  sum  of  $493,  or 
thereabouts,  medical  expense  in  attempting  to  be  cured,  and  has, 
also,  suffered  damages  in  the  sum  of  $10,000. 

Wherefore,  plaintiff  demands  judgment  against  the  defendant, 
A.  F.  Schiffman,  for  the  sum  of  $10,493,  and  the  costs  of  this  action. 

E.  Edgar  Galbreth, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  877— For  negligence  of  grocer  in  selling  a  dangerous  explosive. 

(In  Kenny  v.  Kennedy,  9  Cal.  App.  350;  99  Pac.  384.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  the  plaintiff  and  Rebecca  Kenny  are  now,  and  were  at  all 
the  times  hereinafter  mentioned,  husband  and  wife,  and  that,  as  the 
wife  of  this  plaintiff,  the  said  Rebecca  Kenny  at  all  times  had  author- 
ity to  buy  and  purchase  for  and  on  behalf  of  this  plaintiff,  and  to  act 
as  his  agent  in  the  buying  and  purchasing,  of  all  household  supplies, 
and  particularly  the  oil  hereinafter  mentioned. 

2.  That  the  plaintiff  is  now  and  was  at  all  times  hereinafter  men- 
tioned, the  owner  of  [here  lot  is  described],  and  was  at  all  said 
times  the  owner  and  in  possession  of  that  certain  five-roomed,  one- 
story,  frame  dwelling-house  situated  on  said  lot,  being  known  and 
designated  as  No.    1516   Winfield   Street,   and   that   the   value   of 


Ch.CVL]  COMPLAINTS    [OR  PETITIONS].— FORMS.  1467 

the  said  house  at  and  prior  to  the  time  of  its  destruction  as  herein- 
after alleged  was  the  sum  of  $750. 

3.  That  the  plaintiff  was  at  all  the  times  hereinafter  mentioned 
the  owner  and  in  the  possession  of  all  the  personal  property  con- 
tained in  the  said  house,  which  consisted  of  furniture  [etc.,  describ- 
ing other  property],  and  all  property  being  in  said  house  on  the  29th 
day  of  September,  1906,  and  that  the  same  was  at  the  time  of  its 
destruction  hereinafter  alleged  worth  the  sum  of  $750. 

4.  That  the  defendant  at  all  the  times  hereinafter  mentioned  was, 
and  now  is,  a  dealer  in  groceries,  coal-oil,  gasoline,  and  other  mer- 
chandise at  a  store  known  and  designated  as  No.  1601  West  Twelfth 
Street  in  said  city. 

5-7.  [Here  follow  averments  of  facts  showing  the  negligence  of 
the  defendant  in  selling  the  plaintiff  upon  an  order  for  coal-oil,  a 
quantity  of  gasoline,  the  same  having  been  put  in  a  can  marked  "coal- 
oil"  and  delivered  as  such  to  plaintiff's  wife.] 

8.  That  the  said  gasoline  so  delivered  by  the  defendant  as  afore- 
said was  of  a  highly  explosive  nature  or  character,  and  was  not 
intended  for  the  use  or  purpose  for  which  the  plaintiff  or  his  said 
wife  had  bought  or  ordered  coal-oil,  all  of  which  was  well  known  to 
the  defendant ;  that  said  gasoline  was  a  liquid  of  the  same  color  and 
appearance  as  coal-oil. 

9.  Not  knowing  that  the  defendant  had  so  carelessly  and  negli- 
gently filled  the  said  can  or  receptacle  with  gasoline  as  aforesaid, 
and  relying  upon  the  defendant  to  fill  the  said  can  with  coal-oil,  and 
believing  that  the  said  can  contained  coal-oil,  the  plaintiff's  wife 
filled  the  lamps  in  the  said  house  of  plaintiff  with  said  gasoline,  and 
without  knowing  or  discovering  the  fact  that  the  said  fluid  was  not 
coal-oil,  as  had  been  ordered,  but  was  gasoline,  the  plaintiff's  said 
wife,  on  the  29th  day  of  September,  1906,  lighted  one  of  said  lamps, 
and,  as  a  result  thereof,  the  same  immediately  exploded,  and  the  said 
house  and  its  contents  as  aforesaid  were  set  on  fire  and  totally  burned 
and  destroyed  at  said  time. 

10.  That  there  was  no  insurance  upon  the  said  house  or  the  said 
contents  thereof,  and  that  the  same  were  a  total  loss  to  plaintiff; 
that  the  said  loss  was  wholly  caused  by  the  carelessness  and  negli- 
gence of  defendant  as  aforesaid. 


1468  NEGLIGENCE.— CONTRACTUAL  DUTY,  ETC.  [Tit.  XIII. 

Wherefore,  plaintiff  prays  judgment  against  the  defendant  in  the 
sum  of  $1,500,  and  costs  of  suit. 

Powers  &  Holland, 
[Verification.]  »  Attorneys  for  plaintiff. 

FORM   No.  878 — By  servant,  for  damages  caused  by  vicious  animal. 

(In  Gooding  v.  Chutes  Co.,  155  Cal.  620;  102  Pac.  819;  23  L.  R.  A. 

(N.  S.)  1071n.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges,  that: 

1.  The  defendant  is,  and  at  all  the  times  hereinafter  mentioned 
was,  a  corporation  owning  and  engaged  in  the  business  of  conduct- 
ing a  place  of  amusement  in  the  city  and  county  of  San  Francisco, 
in  the  state  of  California,  known  and  called  "The  Chutes." 

2.  During  all  of  said  times  the  defendant  owned  and  had  in  its 
possession  and  under  its  control  a  camel.  Said  camel  was  at  all  of 
said  times  of  a  vicious  and  ferocious  nature  and  disposition,  and  the 
defendant  at  all  of  said  times  knew  that  said  camel  was  of  a  vicious 
and  ferocious  nature  and  disposition. 

3.  During  the  month  of  January,  1906,  the  plaintiff  was  employed 
by  the  defendant,  to  look  after,  care  for,  and  attend  to  said  camel. 

4.  The  defendant  did  not  at  any  time  inform  the  plaintiff  of  the 
vicious  and  ferocious  nature  and  disposition  of  said  camel,  and 
previous  to  the  attack  hereinafter  mentioned  plaintiff  did  not  know 
that  said  camel  was  of  a  vicious  and  ferocious  nature  and  disposition. 

5.  On  the  29th  day  of  January,  1906,  the  plaintiff  was  ordered  by 
the  defendant  to  clean  the  stall  of  said  camel.  On  said  day,  while 
the  plaintiff  was  cleaning  the  said  stall,  the  said  camel,  without 
warning  of  any  kind,  attacked  plaintiff  and  bit  plaintiff's  left  leg, 
and  crushed  and  mangled  said  leg  so  badly  that  it  became  necessary 
to  amputate  said  leg,  and  it  was  thereafter  amputated. 

6.  By  reason  of  the  defendant's  carelessness  and  negligence  in  fail- 
ing to  inform  the  plaintiff  of  the  vicious  and  ferocious  nature  and 
disposition  of  said  camel,  plaintiff  has  lost  his  left  leg,  and  as  a  result 
and  consequence  of  the  injury  sustained  by  plaintiff  as  aforesaid  he 
has  undergone  great  and  grievous  bodily  and  mental  suffering,  and 
for  the  rest  of  his  days  will  be  incapacitated  from  attending  to  any 
of  his  ordinary  business,  and  will  continue  to  be  deprived  Gf  the 


Ch.  CVI.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1469 

means  of  earning  a  living.     By  reason  of  the  premises  plaintiff  has 
been  damaged  in  the  sum  of  $50,000. 

Wherefore,  the  plaintiff  prays  that  he  have  judgment  against  the 
defendant  for  the  said  sum  of  $50,000,  and  costs  of  suit. 

Carl  Westerfield,  and 
R.  D.  Duke, 
[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  879. — To  recover  damages  against  abstracters  of  title  for  negli- 
gence in  reporting  upon  title  to  real  property. 

(Substantial  portion  of  pleading  sustained  in  Hershiser  v.  Ward,  29 
Nev.  228;  87  Pac.  171,  172.) 

[Title  of  court  and  cause.] 

Now  come  the  plaintiffs  and  complain  of  the  defendants,  and  for 
cause  of  action  allege : 

1-3.  [Here  follow  preliminary  allegations,  and  allegation  as  to 
the  defendants  being  a  copartnership.] 

That  on  or  about  the  24th  day  of  June,  1902,  the  plaintiffs  em- 
ployed defendants,  copartners  as  aforesaid,  for  fees  and  a  reward  to 
them  by  plaintiffs  paid,  to  examine  and  furnish  to  plaintiffs  a  true, 
accurate,  full,  and  correct  abstract  of  the  title  to  that  said  lot,  piece, 
or  parcel  of  land,  lying  and  being  in  the  then  town  [now  city]  of 
Reno,  in  the  county  of  Washoe,  state  of  Nevada,  bound  and  particu- 
larly described  as  follows,  to  wit:  [Here  follows  description],  for 
the  purchase  of  which,  in  fee-simple,  and  without  encumbrances,  the 
plaintiff  had  theretofore  contracted  with  one  W.  H.  Hancock,  who 
claimed  to  be  the  owner  thereof. 

4.  That  defendants,  in  the  performance  of  the  duties  of  such  em- 
ployment, did  thereafter,  and  on  or  about  the  25th  day  of  June, 
1902,  furnish  to  plaintiffs  a  pretended  abstract  of  title  to  said  land, 
and  did  report  and  represent  to  plaintiffs  that  the  same  was  a  full, 
true,  accurate,  and  correct  abstract  of  title  to  said  land;  that  by  said 
pretended  abstract  of  title  it  appeared  and  was  shown  that  the  said 
W.  H.  Hancock  was  the  owner  of  said  land  and  premises  in  fee- 
simple,  without  any  encumbrances ;  that  in  reliance  on  said  pretended 
abstract  of  title,  and  depending  solely  thereon,  plaintiffs  were 
induced  to,  and  did.  on  or  about  the  28th  day  of  June,  1902,  purchase 
said  land  and  premises  from  said  Hancock,  and  did  pay  him  therefor 
the  sum  of  $1,100  in  lawful  money  of  the  United  States,  and,  as  evi- 


1470  NEGLIGENCE.— CONTRACTUAL  DUTY,  ETC.  [Tit.  XIII. 

dence  thereof,  plaintiffs  did  then  and  there  take  and  receive  from 
said  Hancock  a  certain  deed  or  instrument  in  writing,  executed  by 
said  Hancock,  and  duly  acknowledged  by  him,  and  purporting  to 
convey  from  said  Hancock  to  plaintiffs  the  said  land  and  premises  in 
fee;  that  said  deed  or  instrument  in  writing  contains  the  words 
''grant,  bargain,  and  sell,"  but  does  not  contain  any  other  war- 
ranty or  covenant  whatsoever,  and  that  plaintiffs  have  not,  nor  has 
either  of  them  ever  at  any  time,  received  any  other  warranty  or 
covenant  from  said  Hancock,  or  at  all,  relating  to  or  concerning  said 
lands  or  premises  or  the  title  thereto. 

5.  That  said  Hancock  was  not  the  owner  of  said  lands  or  premises, 
or  of  any  interest  therein  whatever,  except  a  mere  equitable  interest 
as  mortgagee  under  and  by  virtue  of  a  certain  indenture  of  mort- 
gage, and  that  the  Bank  of  Nevada,  a  corporation,  was  the  owner  in 
fee  thereof;  that  the  said  state  of  said  title  appeared  of  record  on 
the  public  records  of  said  Washoe  County,  but  of  which  plaintiffs 
were  ignorant,  they  having  relied  upon  defendants  as  aforesaid  to 
inform  them  thereof;  that  defendants  could,  by  the  exercise  of 
proper  diligence  and  skill,  have  discovered  said  facts,  but  failed  to 
discover  the  same,  and  wholly  omitted  and  failed  to  exercise  due 
care  and  skill  in  said  matter  and  search ;  that  defendants  were  there- 
fore guilty  of  neglect  in  examining  into,  and  in  the  investigation  of 
the  title  of  said  land. 

6  That  the  said  mortgage,  by  and  through  which  the  said  Han- 
cock held  said  equitable  interest  as  aforesaid,  was  given  to  secure, 
and  did  secure,  the  payment  of  a  promissory  note,  dated  and 
executed  November  1,  1897,  and,  by  its  terms,  was  payable  on 
demand ;  that  the  plaintiffs  first  discovered  or  learned  that  said  Han- 
cock was  not  the  owner  in  fee  of  the  said  lands  and  premises,  but 
was  the  holder  only  of  said  equitable  interest  as  aforesaid,  on  or 
about  the  day  of  February,  1904,  and  more  than  six  years 

after  the  date  of  said  promissory  note,  and  after  any  action  to  fore- 
close said  note  was  barred  by  section  3718  of  the  Compiled  Laws  of 
Nevada  of  1900,  and  when  the  said  equitable  interest  which  said 
Hancock  held  in  and  to  said  lands  and  premises  as  aforesaid  had, 
without  the  fault  of  these  plaintiffs  or  either  of  them,  become  of  no 
value  whatever. 

7.  That  said  Hancock  has  failed  and  refused,  and  still  does  fail 
and  refuse,  to  pay  to  plaintiffs,  and  said  plaintiffs  have  not  received 


Ch.CVII.]  COMPLAINTS    [OR   PETITIONS],    ETC.  1471 

from  said  Hancock,  or  at  all,  the  said  sum  of  $1,100,  nor  any  part 
thereof. 

8.  That  by  reason  of  said  Hancock's  want  of  title,  and  the  fact 
that  plaintiffs  took  no  title  by  said  deed,  and  the  fact  that  said  Bank 
of  Nevada  was  the  owner  of  said  lands  and  premises,  as  aforesaid, 
the  plaintiffs  were  ousted  and  dispossessed  of  said  land  and  premises 
by  due  course  of  law. 

Wherefore,  plaintiffs  pray  judgment  against  said  defendants, 
jointly  and  severally,  in  the  sum  of  $1,100,  together  with  interest 
thereon  at  the  legal  rate  from  the  28th  day  of  June.  1902,  and  for 
costs  and  disbursements  of  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

For   defense   of   assumed    risk,    see   ch.    CV.    form    No.    867. 

For  defense  of  contributory  negligence,  see  ch.  CV,  forms  Nos.  867  and  868. 

Form  of  petition  in  an  action  to  recover  damages  for  alleged  malpractice  of  the 
defendant  as  a  physician:  Nelson  v.  Harrington,  72  Wis.  591;  40  N.  W.  228,  229,  7 
Am.  St.  Rep.  900,  1  L.  R.  A.  719  n. 


CHAPTER  CVII. 

Negligence  of  Carriers  of  Property  or  Messages. 

Page 

§  371.  Complaints  [or  petitions]    1472 

Form  No.  880.  Against  common  carrier,  for  negligent  loss  of 

goods 1472 

Form  No.  881.  To  recover  for  goods  injured  in  transit 1472 

Form  No.  882.  For  loss  of  baggage   1473 

Form  No.  883.  For  failure  to  collect  on  delivery 1473 

Form  No.  884.  For  failure  to  deliver  at  time  agreed 1474 

Form  No.  885.  Against  marine  carrier,  for  disregarding  notice 

to  keep  goods  dry  1474 

Form  No.  886.  For  negligence  in  loading  cargo 1475 

Form  No.  887.  For  loss  in  unloading   1175 

Form  No.  888.  For  breach  of  contract  by  corporation  to  carry 

message 1476 

§372.  Answers 1476 

Form  No.  889.  Denial  of  contract  of  carriage 1476 

Form  No.  890.  Denial  that  goods  were  received 1476 

Form  No.  891.  Denial  of  loss  and  negligence 1476 

Form  No.  892.  Averment  that  the  contract  was  special 1477 

Form  No.  893.  Defense  that  defendant  is  not  a  common  carrier  1477 
Form  No.  894.  Defense  that  goods  were  negligently  packed  by 

the  plaintiff    1477 


1472  NEGLIGENCE— CARRIERS  OF  PROPERTY,  ETC.       [Tit.  XIIL 

Form  No.  895.  Defense  that  goods  were  lost  by  unavoidable 

accident,  etc 147T 

Form  No.  896.  Defense  setting  forth  stipulation  as  to  value  of 
property  admitted  to  have  been  lost  through 
negligence  1478 

Form  No.  897.  Counterclaim  for  negligence  in  action  by  car- 
rier to  recover  freight  money 1478 

§  373.  Annotations 1479* 


§371.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  880 — Against  common  carrier  for  negligent  loss  of  goods. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  the  defendant  [is  a  corporation,  created  by  and  under  the 
laws  of  the  state  of  ,  and]  at  the  times  hereinafter  mentioned, 
was  a  common  carrier  of  goods  for  hire,  from  to 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff  deliv- 
ered to  the  defendant,  being  such  corporation,  certain  goods  [de- 
scribing them] ,  the  property  of  the  plaintiff,  of  the  value  of  $  , 
and  in  consideration  of  the  sum  of  $  ,  paid  to  the  defendant  by 
the  plaintiff,  the  defendant  then  and  there  entered  into  an  agreement 
with  the  plaintiff  in  writing,  subscribed  by  the  defendant  [or  by  its 
agent  duly  authorized  thereunto],  a  copy  of  which  agreement  is  as 
follows:    [Here  copy.] 

3.  That  the  defendant  did  not  safely  carry  or  deliver  said  goods  as 
agreed,  but  failed  so  to  do,  whereby  the  same  were  wholly  lost  to  the 
plaintiff,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  881 — To  recover  for  goods  injured  in  transit. 

[Title  of  court  and  cause.] 

[Introductory  part.] 

1-2.   [Same  as  paragraphs  1  and  2,  form  No.  880.] 

3.  That  the  defendant  did  not  safely  carry  said  goods  as  so  agreed, 
but  wrongfully  and  negligently  failed  so  to  do ;  that  defendant  deliv- 
ered said  goods  in  a  damaged  condition  in  this  [here  state],  whereby 
the  same  were  wholly  [or  if  partially,  so  state  and  specify]  lost  to  the 
plaintiff,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 


Ch.  CVIL]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1473 

FORM    No.  882 — For  loss  of  baggage. 

[Title  of  court  and  cause.] 

[After  introductory  part,  and,  if  defendant  be  a  corporation,  so 
alleging:] 

1.  That  at  the  times  hereinafter  mentioned  the  defendant  was  a 
common  carrier  of  passengers  and  their  baggage,  for  hire,  from 

to 

2.  That  on  the  day  of  ,  19  ,  the  defendant  as  such  com- 
mon carrier,  for  a  compensation  then  paid  to  him  [it]  by  the 
plaintiff,  received  into  his  [its]  train  [or  stage-coach,  etc.]  at  , 
the  plaintiff,  with  his  baggage,  to  wit,  [here  describe,]  and  under- 
took to  carry  plaintiff  and  his  said  baggage  from  said            to 

3.  That  said  baggage  was  then  of  the  value  of  $ 

4.  That  the  defendant,  disregarding  his  [its]  obligation,  did  not 
use  proper  care  in  the  premises,  but  by  his  [its]  negligence  [and  that 
of  his  (its)  servants]  said  baggage  was  wholly  lost  to  the  plaintiff,  tc 
his  damage  in  the  sum  of  $ 

[Concluding  part.] 


FORM   No.  883 — For  failure  to  collect  on  delivery. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  [Same  as  paragraph  1,  form  No.  880.] 

2.  That  on  said  day,  in  consideration  of  $  then  paid  [or  in 
consideration  of  a  reasonable  reward  to  be  paid],  the  defendant 
agreed  to  carry  safely  for  the  plaintiff,  and  to  deliver  to  ,  at 

,  on  payment  by  said  ',  and  not  otherwise,  of  the  sum  of 

$  ,  and  to  pay  over  said  sum  to  the  plaintiff ;  and  the  plaintiff 

then  and  there  delivered  to  the  defendant  for  that  purpose  the  fol- 
lowing goods  [give  description],  a  copy  of  which  agreement  is  hereto 
annexed,  marked  "Exhibit  A,"  and  made  a  part  hereof. 

3.  That  the  defendant  neglected  and  failed  to  collect  said  sum  from 
said  ,  but  delivered  said  goods  to  him  without  receiving  pay- 
ment of  said  amount,  and  has  not  paid  the  same  over  to  the  plaintiff, 
nor  has  said  sum  or  any  part  thereof  been  paid,  to  the  plaintiff's 
damage  in  the  sum  of  $ 

[Concluding  part.] 


1474  NEGLIGENCE.— CARRIERS  OF  PROPERTY,  ETC.       [Tit.  X1U. 

FORM   No.  884 — For  failure  to  deliver  at  time  agreed. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [Same  as  paragraph  1,  form  No.  880.] 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
delivered  to  the  defendant  certain  goods,  to  wit,  [describing  them,] 
of  the  value  of  $  ,  the  property  of  the  plaintiff,  which  the  de- 
fendant, in  consideration  of  a  reasonable  compensation  to  be  paid  it 
by  the  plaintiff  agreed  safely  to  carry  to  ,  and  there  deliver 
to  the  plaintiff,  on  or  before  the            day  of                ,  19 

3.  That  the  defendant  did  not  deliver  the  same  within  that  time, 
as  agreed,  but  failed  so  to  do,  and  did  not  deliver  the  same  until 
the  day  of  ,  19  ,  whereby  the  plaintiff  was  deprived  of 
the  use  of  said  goods  for  a  long  time,  and  the  same  were  diminished 
in  value,  to  the  damage  of  the  plaintiff  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  885 — Against  marine  carrier,  for  disregarding  notice  to  keep  goods 
dry. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  the  port  of  T 
the  defendant  was  the  master  and  commander  of  a  vessel  known 
as  the  ,  then  lying  at  said  port,  and  the  plaintiff  caused  to  be 
shipped  on  board  said  vessel  certain  goods  [describe  the  same], 
belonging  to  the  plaintiff,  and  of  the  value  of  $  ;  that  said 
goods  were  then  in  good  order  and  condition ;  that  in  consideration 
whereof,  and  of  the  sum  of  $  ,  then  and  there  paid  by  the 
plaintiff  to  the  defendant,  the  defendant  then  and  there  promised 
safely  to  carry  said  goods  to              ,  and  there  safely  deliver  them  to 

,  perils  of  the  seas  only  excepted,  and  then  and  there  received 
said  goods  for  that  purpose. 

2.  That  the  plaintiff  then  and  there  caused  due  notice  to  be  given 
to  the  defendant  that  it  was  necessary  to  the  preservation  of  said 
goods  that  they  should  be  kept  dry. 

3.  That  the  defendant  failed  to  care  for  or  safely  to  carry  said 
goods,  but  so  negligently  and  carelessly  carried  the  same  that  they 
became  wet,  and  thereby  entirely  destroyed  [or  otherwise  injured, 
as  the  case  may  be],  which  injury  was  not  occasioned  by  reason  of 


Ch.  CVII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1475 

any  peril  of  the  seas,  but  wholly  through  the  negligence  of  the 
defendant  and  his  servants,  by  reason  whereof  the  plaintiff  was 
damaged  in  the  sum  of  $ 
[Concluding  part.] 


FORM   No.  886 — For  negligence  in  loading  cargo. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff,  at 
defendant's  request,  caused  to  be  delivered  to  him  [describe  goods] 
of  the  plaintiff  of  the  value  of  $  ,  to  be  by  the  defendant  safely 
and  securely  loaded  on  board  a  certain  vessel  at  ,  for  the 
plaintiff,  for  a  reasonable  compensation  to  be  paid  defendant  there- 
for, and  the  defendant  then  and  there  received  the  goods  for  that 
purpose. 

2.  That  the  defendant  afterwards,  by  himself  and  his  servants,  so 
carelessly  and  improperly  conducted  the  loading  of  said  goods  on 
board  the  said  vessel  that  by  their  negligence  and  improper  conduct 
the  goods  were  broken  and  injured,  and  a  part  thereof  wholly  de- 
stroyed, [specifying],  to  the  damage  of  the  plaintiff  in  the  sum 
of  $ 

[Concluding  part.] 

FORM   No.  887 — For  loss  in  unloading. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [Same  as  paragraph  1,  form  No.  885.] 

2.  That  said  vessel  afterwards  arrived  safely  at  ,  and  no 
[excepted  perils]  prevented  the  safe  carriage  or  delivery  of  the 
goods. 

3.  That  the  defendant  did  not  deliver  the  said  goods  to  the  plaint- 
iff, and  for  lack  of  due  care  in  the  defendant  and  his  servants  in 
unloading  and  delivering  said  goods  from  said  vessel,  they  were 
wholly  lost  to  the  plaintiff,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 


1476  NEGLIGENCE.— CARRIERS  OF  PROPERTY,  ETC.       [Tit.  XIIL 

FORM   No.  888 — For  breach  of  contract  by  corporation  to  carry  message. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  [Aver  incorporation  of  defendant.] 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant, 
as  a  common  carrier,  received  of  the  plaintiff  a  certain  message,  a 
copy  of  which  is  as  follows :  [Here  set  forth  copy]  ;  that  said  mes- 
sage was  to  be  delivered  in  due  course  to  at  ;  and  that 
plaintiff  paid  to  the  defendant  the  compensation  demanded  therefor. 

3.  That  defendant  neglected  and  failed  to  deliver  said  message 
[or  delivered  said  message  after  great  delay,  stating  when]  to  the 
great  detriment  of  plaintiff,  and  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

§372.     ANSWERS. 

FORM   No.  889 — Denial  of  contract  of  carriage. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition], 
as  follows : 

Denies  that  he  ever  undertook  or  agreed  to  carry  said  goods  [or 
message]  to  ,  or  to  deliver  the  same  to  ,  and  denies 

that  said  ever  paid  him,  or  agreed  to  pay  him,  any  reward  for 

such  service. 

[Etc.] 

FORM   No.  890 — Denial  that  goods  were  received. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  the  said  ever  delivered  to  him  the  said  goods 

mentioned  in  the  complaint   [or  petition],  or  that  defendant  ever 

received  the  same,  or  any  of  them. 

FORM   No.  891 — Denial  of  loss  and  negligence. 

[Title  of  court  and  cause.] 

The  defendant  answering  to  the  plaintiff's  complaint  [or  petition] 
avers  : 

That  he  has  no  knowledge  or  information  sufficient  to  form  a  belief 
whether  said  goods  were  lost  to  said  ,  and  denies  that  he  was 

negligent  in  and  about  the  carriage,  storing,  or  unloading  of  same. 


Ch.  CVIL]  ANSWERS.— FORMS.  1477 

FORM   No.  892 — Averment  that  the  contract  was  special. 

[Title  of  court  and  cause.] 

The  defendant,  answering  to  the  plaintiff's  complaint  [or  petition]  : 

Avers  that  the  goods  mentioned  therein  were  delivered  by  the 

plaintiff  to  and  received  by  the  defendant  upon  a  special  contract 

between  them,  whereby  it  was  expressly  agreed  and  stipulated  that 

[stating  the  terms]. 

FORM   No.  893 — Defense  that  defendant  is  not  a  common  carrier. 

[Title  of  court  and  cause.] 

The  defendant  answering  to  the  plaintiff's  complaint  [or  petition]  : 
Alleges  that  he  is  not  now,  and  was  not  at  the  time  mentioned  in 
the  complaint  [or  petition],  or  at  any  time,  a  common  carrier. 

[Etc.] 

FORM   No.  894 — Defense  that  goods  were  negligently  packed  by  the  plaintiff. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

1.  That  the  goods  mentioned  therein  were  of  a  fragile  nature, 
liable  to  injury  from  slight  cause,  which  the  plaintiff  well  knew,  but 
the  defendant  did  not  and  could  not  reasonably  be  expected  to  know. 

2.  That  said  goods,  when  delivered  to  the  defendant,  were  improp- 
erly packed  [here  state  in  what  respect],  whereas  the  usual  and  only 
safe  way  of  packing  such  articles  is  [here  state]. 

3.  That  by  reason  of  such  defective  packing,  and  without  the  fault 
of  the  defendant,  said  articles  were  injured. 

[Concluding  part.] 

FORM   No.  895 — Defense  that  goods  were  lost  by  unavoidable  accident,  etc. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

1.  That  the  merchandise  mentioned  therein  was  delivered  by  the 
plaintiff  to  the  defendant,  and  by  the  defendant  received  on  board 
the  train  [or  steamer,  etc.],  under  and  in  pursuance  of  a  special  con- 
tract made  between  them  for  the  transportation  of  the  same  from 

to  ,  of  which  the  following  is  a  copy:    [Copy  of  con- 

tract.] 

2.  That  while  said  merchandise  was  well  and  properly  stowed  on 
board  the  said  train  [or  steamer,  etc.],  and  being  carried  pursuant 

Jury's   PI.— 94. 


J478  NEGLIGENCE.— CARRIERS  OF  PROPERTY,  ETC.       [Tit.  XIII. 

to  said  contract,  and  without  any  carelessness  or  misconduct  of  the 
defendant  or  his  servants,  or  any  defect  of  the  said  train  [or  steamer, 
etc.],  or  its  equipments,  the  train  [or  steamer,  etc.],  by  mere  casualty 
and  accident,  took  fire  and  was  consumed,  with  its  cargo,  including1 
the  merchandise  of  the  plaintiff  [or  state  if  loss  resulted  from  any 
other  unavoidable  cause],  and  thereby,  by  accident  and  casualty  of 
fire  [or  otherwise,  as  the  case  may  be],  and  not  by  any  negligence, 
misconduct,  or  default  of  the  defendant,  the  said  merchandise  was 
lost,  and  was  not  delivered. 
[Concluding  part.] 

FORM   No.  896 — Defense    setting   forth    stipulation    as   to   value    of    property 
admitted  to  have  been  lost  through  negligence. 

(In  Alain  v.  Northern  Pacific  R.  R.  Co.,  53  Minn.  160,  51  N.  W.  1072 ; 
39  Am.  St.  Rep.  588;  19  L.  R.  A.  764.) 

[Title  of  court  and  cause.] 

Defendant,  for  answer  to  the  petition  of  plaintiff,  admits  the  deliv- 
ery and  receipt  of  the  horses  for  transportation,  their  value,  and  their 
loss  through  its  negligence,  as  stated  in  the  petition,  but  defendant 
alleges  that  said  property  was  delivered  and  received  upon  a  special 
written  contract,  executed  by  both  parties,  containing  the  terms  and 
conditions  on  which  defendant  undertook  to  transport  property,  one 
of  which  was  as  follows:  "It  is  hereby  stipulated  that  the  value  of 
the  livestock  to  be  transported  does  not  exceed  the  following-men- 
tioned sums,  to  wit :  Each  horse,  $100 ;  each  bull,  $50 ;  each  cow,  $30 ; 
such  valuation  being  that  whereon  all  compensation  to  this  company 
for  its  services  and  risks  connected  with  said  property  is  based." 

[Then  follows  averment  of  a  tender  of  the  amount  of  loss  according 
to  said  valuation,  the  refusal  to  accept  the  same,  etc.] 

[Concluding  part.] 

FORM   No.  897 — Counterclaim  for  negligence  in  action  by  carrier  to  recover 
freight  money. 

[Title  of  court  and  cause.] 

[After  introductory  part,  and  such  other  defenses  as  may  be  set 
forth,  allege:] 

The  defendant,  further  answering  said  complaint  [or  petition], 
and  by  way  of  counterclaim  herein  alleges : 

That  the  transportation  of  the  goods  described  in  said  comprint 


Ch.  CVIL]  ANNOTATIONS.  1479 

[or  petition]  was  so  negligently  and  carelessly  conducted  by  the 
plaintiff,  its  servants  and  agents,  the  particulars  whereof  are  here- 
inafter set  forth,  that  said  goods,  and  all  thereof,  were  damaged  by 
plaintiff  in  this,  [here  specify]  ;  that  said  negligence  and  careless- 
ness of  the  plaintiff  consisted  in  this,  [here  specify  the  facts]  ;  that 
by  reason  thereof  said  goods  were  wholly  [or,  if  partially,  so  state 
and  specify]  lost  to  the  defendant,  to  his  damage  in  the  sum  of  $ 

Wherefore,  defendant  prays  that  he  be  allowed  the  amount  of  said 
counterclaim  as  against  the  demand  of  the  plaintiff  herein,  and 
furthermore  that  defendant  be  awarded  his  costs. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

For  the  substance  of  a  complaint  or  petition  in  an  action  to  recover  damages 
for  the  breach  of  a  contract  for  the  negligent  transportation  of  animals  resulting 
in  their  emaciation,  sickness,  etc.,  from  the  effect  of  which  some  of  the  animals 
died,  see  Chicago  etc.  R.  Co.  v.  Mitchell  (Okla.),  101  Pac.  850. 

Form  of  complaint  in  an  action  for  damages  occasioned,  as  alleged,  by  the  gross 
and  malicious  negligence  of  the  company  to  transmit  and  deliver  a  telegraphic 
message:     West  v.  Western  Union  Tel.  Co.,  39  Kan.  93,  94,  17  Pac.  807,  808. 

Form  of  petition  in  an  action  for  damages  for  loss  occasioned  by  delay  in  deliv- 
ering a  telegram:  Martin  v.  Western  Union  Tel.  Co.,  1  Tex.  Civ.  App.  143,  20 
S.   W.   860,   SGI. 

§373.     ANNOTATIONS. — Negligence  of  carriers  of  property  or  messages. 

1.  Action  by  endorsee  of  bill  of  lading. 

2.  General  allegation   as  to   delay  in   transporting. 

3.  Tort  and  breach  of  contract. — Pleading  in  one  count. 

4.  Liability  imported   by  allegation   that  defendant  is  common   carrier. 

5.  Contract  not  specifying  shipping  charges. — Construction  of. 

6.  Storage  not  new  contract  requiring  special  pleading. 

1.  Action  by  endorsee  of  bill  of  lad-  obligation  to  transport  within  a  reason. 
Ing. — Where  a  steamshipper  having  the  able  time,  and  the  other  ex  contractu, 
right  of  property  endorses  and  delivers  for  a  breach  of  the  verbal  contract,— 
a  bill  of  lading,  endorsee  may  maintain  may  not  be  commingled  and  relied  upon 
an  action  in  his  own  name  for  goods  in  the  same  count:  Burgher  v.  Wabash 
represented  by  such  bill  of  lading:  R.  Co.,  139  Mo.  App.  62,  120  S.  W.  673, 
Dodge  v.  Meyer,   61   Cal.   405,  417.  677,   (for  damages  for  breach  of  duty  of 

2.  General  allegation  as  to  delay  In  common  carrier  to  transport  live 
transporting. — In   the  absence  of  a  spe-  freight). 

cial  demurrer,  the  plaintiff  is  not  re-  4.  Liability  Imported  by  allegation  that 
quired  to  specify  what  is  a  reasonable  defendant  is  a  common  carrier. — A  corn- 
time  for  transportation  of  goods  be-  plaint  which  avers  that  defendant  is  a 
tween  two  points,  and  a  general  allega-  common  carrier  is  sufficient  to  impose 
tion  of  failure  to  transport  and  deliver  upon  defendant,  if  proofs  be  sufficient, 
within  a  reasonable  time  is  sufficient  in  liability  as  common  carrier  over  entire 
the  absence  of  a  specific  objection  route  without  reference  to  the  termina- 
thereto:  Palmer  v.  Atchison  etc.  R.  Co.,  tion  of  road:  Wheeler  v.  San  Francisco 
101  Cal.  187,  189,  35  Pac.  630.  etc.   R.   Co.,   31  Cal.   46,   55,   89  Am.   Dec. 

3.  Tort  and  breach  of  contract. — Plead-  147. 

Ing    in   one   count. — Two   causes, — one   in  5.  Contract     not     specifying     shipping 

tort,  for  the  breach  of  the  common-law       charges.  —  Construction     of.  —  Where     a 


1480                               INJURIES  TO  PASSENGERS,  ETC.  [Tit.  XII L 

contract  in  an  action  brought  to  recover  only  to  pay  reasonable  charges:  Chicago 
shipping  charges,  as  declared  upon,  was  etc.  R.  Co.  v.  Bay  Shore  L.  Co.,  140 
express  in  respect  to  a  promise  by  de-  Mo.  App.  52,  119  S.  W.  973,  976. 
fendant  to  pay  the  plaintiff,  but  not  as  6.  Storage  does  not  create  a  new  con- 
to  the  amount  of  the  charges  to  be  tract  requiring  to  be  specially  pleaded 
paid;  held,  that  the  averment  can  not  and  distinguished  from  the  original  con- 
fairly  be  held  to  charge  that  defendant  tract  for  carriage  in  order  to  recover 
agreed  to  pay  the  plaintiff  whatever  goods  or  their  value:  Wilson  v.  Califor- 
plaintiff  might  ask  for  freight  charges,  nia  C.  R.  Co.,  94  Cal.  166,  170,  29  Pac. 
no  matter  how  exorbitant  they  were,  but  861,   7  L.   R.  A.   685. 


CHAPTER  CVIII. 

Negligence  of  Carriers. — Actions  for  Injuries  to  Passengers  not  Resulting  in 

Death. 

Page 

§  374.  Code  provisions  1480 

§  375.  Complaints  [or  petitions]   i484 

Form  No.  898.  Against  street  railway  corporation  for  damages 
for  personal  injuries  sustained  by  passenger 
through  negligent  and  careless  starting  of  car  1484 
Form  No.  899.  Against  common  carrier  for  personal  injuries 
resulting  from  wrongful  ejection  of  passen- 
ger from  street-car 1486 

Form  No.  900.  For  damages  for  forcible  ejection  from  train..     1487 
Form  No.  901.  For  personal  injuries  suffered  by  a  wife. — Join- 
ing of  husband  in  the  action 1489 

Form  No.  902.  By  passenger,  for  damages  caused  by  negligent 

operation  of  an  elevator 1491 

§  376.  Annotations    1492 


§374.     CODE  PROVISIONS. 

Damages  for  failure  to  transport  and  deliver. 

California,  §  482.  In  case  of  refusal  by  such  corporation  or  their 
agents  so  to  take  and  transport  any  passengers  or  property,  or  to 
deliver  the  same,  at  the  regular  appointed  places,  such  corpora- 
tion must  pay  to  the  party  aggrieved  all  damages  which  are  sus- 
tained thereby,  with  costs  of  suit.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

•  Arizona,  Rev.  Stats.  1901,  11876.  «>  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
§6593.  Idaho,  Rev.  Codes  1909,  §2811.  Montana,  Rev.  Codes  1907,  §4325. 
•  Nebraska,  Comp.  Stats.  Ann.  1909,  §2080;  Ann.  Stats.  (Cobbey),  §10598. 
Nevada,  Comp.  Laws  Ann.  1900  (Cutting),  §  1017.  a  New  Mexico,  Comp.  Laws 
1897,  §3863.    *  North  Dakota,  Rev.  Codes  1905,  §4289.    'Oklahoma,  Rev.  and 


Oh.  CVIIL] 


CODE  PROVISIONS. 


1481 


Ann.  Stats.  1903  (Wilson),  §  1049;  Comp.  Laws  1909  (Snyder),  §  1379.  e  South 
Dakota,  Rev.  Codes  1903,  C.  C.  §  521.  h  Texas,  Civ.  Stats.  1897  (Sayles),  Art. 
4496.     i  Utah,  Comp.  Laws  1907,  §  449. 


a  Arizona,  I  876.  In  case  said  corpo- 
ration shall  refuse  to  transport  persons 
or  property  as  provided  in  the  preced- 
ing section,  or  leave  the  same  at  place 
at  destination,  it  shall  pay  to  the  party 
aggrieved  all  damages  he  or  she  shall 
sustain  thereby. 

b  Arkansas,  §  6593,  substantially  same 
as  Cal.  Civ.  Code  §  482,  except  in  line  3 
after  "appointed"  change  "places"  to 
"time." 

c  Nebraska,  §  2080,  substantially  same 
as  Cal.  Civ.  Code  §  482,  except  in  line  3 
after  "same"  change  the  next  passage  to 
read  "or  either  of  them,  under  the  laws, 
rules,  and  usages  the  [that]  regulate 
common  carriers,"  before  "such  corpora- 
tion." 

d  New  Mexico,  §  3S63,  substantially 
same  as  Arizona,  fl  876. 

e  North  Dakota,  §  4289.  In  case  of  the 
refusal  by  such  corporation  or  its  agents 
to  take  or  transport  any  passenger  or 
property  as  provided  in  the  preceding 
section,  or  in  case  of  the  neglect  or  re- 
fusal of  such  corporation  or  its  agents 
to  discharge  or  deliver  passengers  or 
property  at  the  regularly  appointed  place 
under  the  laws  which  regulate  common 
carriers,  such  corporation  shall  pay  to 
the  party  aggrieved  all  damages  which 
shall  be  sustained  thereby  with  costs  of 
action. 

f  Oklahoma,  §  1049,  same  as  North  Da- 
kota §  4289. 

g  South  Dakota,  Civ.  Code  §  521,  same 
as  North   Dakota   §  4289. 

h  Texas,  Art.  4496.  In  case  of  the  re- 
fusal by  such  corporation  or  their  agents 


so  to  take  and  transport  any  passenger 
or  property,  or  to  deliver  the  same,  or 
either  of  them,  at  the  regular[ly]  ap- 
pointed time,  such  corporation  shall  pay 
to  the  party  aggrieved  all  damages  which 
shall  be  sustained  thereby,  with  costs  of 
suit,  and  in  case  of  the  transportation  of 
property  shall  in  addition  pay  to  such 
party  special  damages  at  the  rate  of  five 
per  cent  per  month  upon  the  value  of 
the  same  at  the  time  of  shipment,  for 
the  negligent  detention  thereof  beyond 
the  time  reasonably  necessary  for  its 
transportation;  provided,  that  in  all  suits 
against  such  corporation  under  this  law 
the  burden  of  proof  shall  be  on  such  cor- 
poration to  show  that  the  delay  was  not 
negligent. 

i  Utah,  §  449.  Every  railroad  company 
shall  furnish  sufficient  accommodations 
for  the  transportation  of  all  passengers 
and  property  as  shall,  within  a  reason- 
able time  previous  to  the  departure  of 
any  train,  offer  or  be  offered  for  trans- 
portation at  any  station,  siding,  or  stop- 
ping place  established  for  receiving  and 
discharging  passengers  and  freight,  and 
at  any  railroad  junction;  and  shall  take, 
transport,  and  discharge  such  passengers 
and  property  at,  from,  and  to  such 
places,  on  the  due  payment  of  tolls, 
freight,  or  fare  therefor;  and  if  the  com- 
pany or  its  agents  shall  refuse  to  take 
and  transport  any  passenger  or  property, 
or  to  deliver  the  same  at  the  regularly 
appointed  places,  it  shall  be  liable  to  the 
party  aggrieved  for  all  accruing  dam- 
ages, including  costs  of  suit. 


Duty  to  furnish  accommodations. 

California,  §  483.  Every  railroad  corporation  must  furnish,  on 
the  inside  of  the  passenger  cars,  sufficient  room  and  acommodations 
for  all  passengers  to  whom  tickets  are  sold  for  any  one  trip  and 
for  all  persons  presenting  tickets  entitling  them  to  travel  thereon; 
and  when  fare  is  taken  for  transporting  passengers  on  any  baggage, 
wood,  gravel,  or  freight  car,  the  same  care  must  be  taken  and  the 
same  responsibility  is  assumed  by  the  corporation  as  for  passen- 
gers on  passenger  cars.     (Kerr's  Cyc.  Civ.  Code.) 


baggage,   wood  or  freight  car,    in   viola- 
tion   of    the    printed    regulations    of    the 


1482  INJURIES  TO  PASSENGERS,  ETC.  [Tit.  XIII. 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and   the  difference  there  shown: 

Idaho,  Rev.  Codes  1909,  §2812.  a  Missouri,  Ann.  Stats.  1906,  §1080.  Mon- 
tana, Rev.  Codes  1907,  §  4326.  b  North  Dakota,  Rev.  Codes  1905,  §  4291. 
c  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §1051;  Comp.  Laws  1909 
(Snyder),  §  1381.  a  South  Dakota,  Rev.  Codes  1903,  C.  C.  §  523.  •  Utah,  Comp. 
Laws  1907,  §§449,  450. 

a  Missouri,    §1080.     In    case    any    pas-  d  South    Dakota,   Civ.   Code   §523,   sub- 

senger  on   any  railroad  shall  be   injured       stantially    same    as    last    clause    of    Cal. 

while  on  the  platform  of  a  car,  or  in  any       Civ-  Code  §  4S3- 

ei  Utah,    §  449,    see  note   l  to   Cal.    Civ. 

Code  §  4S2. 

e2  Utah,   §  450.     In  case  any  passenger 

company,  posted  up  at  the  time  in  a  con-  ghaU  be  injured  on   the  piatform  of  any 

spicuous    place    inside    of    its    passenger  car  qt  Qn  any  baggage>  wood>  gravel>  or 

cars    then    in    the    train,    such    company  freight   ^    in   violation   of   the   printed 

shall  not  be  liable  for  the  injury:     Pro-  regulations  of  the  company>  posted  up  at 

vided,    said   company,    at   the   time,    fur-  the  tIme  in  &  conspicuous  place  inside  of 

nished    room    inside    its    passenger    cars  m  passenger  cars  then  In  the  train  or  in 

sufficient  for  the  proper  accommodation  violation  of  verbal   instruction  given   by 

of  the  passengers.  any  officer  of  tfte  train  or  company,  such 

b  North     Dakota,    §  4291,    substantially  company  shall  not  be  liable  for  the  said 

same   as   last    clause   of   Cal.    Civ.    Code  injury;    provided,    said    company    at    the 

§  483.  time  furnished  room  inside  its  passenger 

c  Oklahoma,   §  1051,   substantially  same  cars  sufficient  for  the  accommodation  of 

as  last  clause  of  Cal.  Civ.  Code  §  483.  the  passengers. 

Eviction  of  passenger  refusing  fare. 
California,  §  487.  If  any  passenger  refuses  to  pay  his  fare,  orvto 
exhibit  or  surrender  his  ticket,  when  reasonably  requested  so  to  do, 
the  conductor  and  employees  of  the  corporation  may  put  him  and 
his  baggage  out  of  the  cars,  using  no  unnecessary  force,  at  any 
usual  stopping  place,  or  near  any  dwelling-house,  on  stopping  the 
train.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §6591.  Idaho,  Rev.  Codes  1909, 
§  2822.  b  Missouri,  Ann.  Stats.  1906,  §  1074.  Montana,  Rev.  Codes  1907,  §  4328. 
c  Nebraska,  Comp.  Stats.  Ann.  1909,  §2065;  Ann.  Stats.  (Cobbey),  §10624. 
d  Nevada,  Comp.  Laws  Ann.  1900  (Cutting),  §1019.  « New  Mexico,  Comp. 
Laws  1897,  §3847.  *  North  Dakota,  Rev.  Codes  1905,  §5688.  e  Oklahoma, 
Rev.  and  Ann.  Stats.  1903  (Wilson),  §1062;  Comp.  Laws  1909  (Snyder), 
§1394.  h  South  Dakota,  Rev.  Codes  1903,  C.  C.  §§545,  1593.  «  Utah,  Comp. 
Laws  1907,  §  451.    i  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §  1818. 

a  Arkansas,    §  6591.     If    any    passenger  tion  to  put  him  out  of  the  cars  at  any 

shall    refuse    to   pay   his   fare   or   toll,    it  usual  stopping  place  the  conductor  shall 

shall  be  lawful  for  the  conductor  of  the  select. 

*rain   and   the   servants   of   the   corpora-  b  Missouri,     $  1074.     If    any    passenger 


Ch.  CVIIL] 


CODE  PROVISIONS. 


148:J 


shall  refuse  to  pay  his  fare,  or  shall  be- 
have in  an  offensive  manner,  or  be  guilty 
of  repeated  violations  of  the  rules  of  the 
company,  it  shall  be  lawful  for  the  con- 
ductor of  the  train  and  the  servants  of 
the  corporation  to  put  him  and  his  bag- 
gage out  of  the  cars,  using  no  unneces- 
sary force,  at  any  usual  stopping  place, 
or  near  any  dwelling-house,  as  the  con- 
ductors shall  elect,  on  stopping  the  train. 

c  Nebraska,  §  2065.  If  any  passenger 
shall  refuse  to  pay  his  fare,  it  shall  be 
lawful  for  the  conductor  of  the  train  and 
the  servants  of  the  corporation  to  put 
him  and  his  baggage  out  of  the  cars,  us- 
ing no  unnecessary  force,  at  any  place 
within  five  miles  of  any  station. 

d  Nevada,  §  1019,  substantially  same  as 
Arkansas  §  6591,  except  in  line  2,  after 
"toll,"  insert  "upon  demand";  also  in 
line  6,  after  "any"  omit  "usual"  before 
"stopping." 

e  New  Mexico,  §  3S47.  In  addition  to 
the  foregoing,  every  corporation  formed 
under  this  act  shall  have  the  following 
powers: 

*  •  *  Thirteenth.  To  expel  from 
its  cars  at  any  stopping  place,  using  no 
more  force  than  may  be  necessary,  any 
passenger  who,  upon  demand,  shall  re- 
fuse to  pay  his  fare,  or  shall  behave  in  a 
rude,  riotous  or  disorderly  manner  to- 
ward other  passengers,  or  the  employees 
of  such  corporations  in  charge  of  such 
cars  or,  upon  his  attention  being  called 
thereto,  shall  persist  in  violating  the 
rules  of  the  corporation  against  gam- 
bling upon  its  cars. 


f  North  Dakota,  §  5688.  A  passenger 
who  refuses  to  pay  his  fare  or  to  con- 
form to  any  lawful  regulation  of  the  car- 
rier may  be  ejected  from  the  vehicle  by 
the  carrier.  But  this  must  be  done  with 
as  little  violence  as  possible  and  at  any 
usual  stopping  place  or  near  some  dwell- 
ing-house. After  having  ejected  the  pas- 
senger a  carrier  has  no  right  to  require 
the  payment  of  any  part  of  his  fare. 

g  Oklahoma,  §1062,  substantially  same 
as   North   Dakota   §  5688. 

hi  South  Dakota,  C.  C.  §  545.  If  any 
passenger  shall  refuse  to  pay  his  fare, 
it  shall  be  lawful  for  the  conductor  of 
the  train  and  the  servants  of  the  cor- 
poration to  put  him  and  his  baggage  out 
of  the  cars  in  the  manner  prescribed  in 
section   1593. 

h2  South  Dakota,  §  1593,  same  as  North 
Dakota  §  56S8. 

i  Utah,  §  451,  substantially  same  as  Cal. 
Civ.  Code  §  4S7,  except  in  line  2,  omit 
"reasonably"  before  "requested";  also 
after  "so  to  do"  in  the  same  line  insert 
"or  if  he  behaves  in  a  disorderly  man- 
ner" before  "the  conductor";  also  in  the 
line  next  to  the  last  change  "near"  to  "in 
sight  of"  before  "any  dwelling." 

j  Wisconsin,  §  1S18.  If  any  passenger 
shall  refuse  to  pay  his  fare  it  shall  be 
lawful  for  the  conductor  of  the  train  and 
the  servants  of  the  corporation  to  put 
him  and  his  baggage  off  the  cars,  on 
stopping  the  cars  and  using  no  unneces- 
sary force,  at  any  usual  stopping  place 
or  near  any  dwelling-house,  as  the  con- 
ductor shall  elect. 


Regulations  as  to  fares,  etc. 

California,  §  501.  The  rates  of  fare  on  the  cars  must  not  exceed 
ten  cents  for  one  fare  for  any  distance  under  three  miles,  and  in 
municipal  corporations  of  the  first  class  must  not  exceed  five  cents 
for  each  passenger  per  trip  of  any  distance  in  one  direction  either 
going  or  coming,  along  any  part  of  the  whole  length  of  the  road  or 
its  connections.  The  cars  must  be  of  the  most  approved  construc- 
tion for  the  comfort  and  convenience  of  passengers,  and  provided 
with  brakes  to  stop  the  same,  when  required. 

A  violation  of  the  provisions  of  this  section  subjects  the  corpora- 
tion to  a  fine  of  one  hundred  dollars  for  each  offense.  (Kerr's  Cyc. 
Civ.  Code.) 


1484  INJURIES  TO  PASSENGERS,  ETC.  [Tit.  XIII. 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §843.  b  Oregon,  Ann.  Codes  and  Stats.  1902 
(Bel.  &  Cot),  §  2096. 

a  Hawaii,    §  843.     1.  Any   person   riding  without   the   payment   of   an    extra   fare 

upon   the   cars   of  said   railway   shall   be  upon  the  lines  of  this  railway.     *    •    • 

liable  to  pay  for  such  transportation  the  "  Oregon,  §  2096.     That  it  shall  be  un- 

following   rates:     For   a   continuous   ride  lawful  for  an^  Person'  company,  or  cor- 

anywhere    between    Diamond    Head    and  poration    owning  or  operating  a  line  or 

„,.„,.,  lines  of  street  railway  within  the  corpo- 

Moanalua,  or  Makai  of  a  line  drawn  par-  ,.  , ,        .      ...    „*,,*„   nr 

rate  limits  of  any  city  in  the  state  or 
allel  to  the  sea  coast,  and  one  and  a  Oregon  naving  a  population  of  over  fifty 
half  miles  distant  therefrom,  not  to  ex-  thousand  inhabitants,  to  charge  a  rate 
ceed  five  cents,  provided  that  children  of  fare  to  any  passenger  exceeding  the 
under  seventeen  years  of  age  in  going  to  sum  0f  five  cents  for  any  one  continuous 
and  from  school,  shall  not  be  required  trip  in  any  one  general  direction  be- 
to  pay  over  half  fares,  for  which  purpose  tween  any  two  points  on  the  street  rail- 
tickets  shall   be   issued.     *     *     *  way    line    of   such    person,    company,    or 

3.  Upon  a  continuous  trip,  persons  rid-  corporation  within  the  corporate  limits  of 

ing  upon  the  cars,  and  transferring  from  such  city.     Any  violation  of  this  section 

one    car   to    another    upon    a   connecting  shall  be  punished  by  a  fine  of  not  less 

line  within  the  limits  above  mentioned,  than  fifty  dollars  nor  more  than  one  hun- 

shall    be    entitled    to    a    transfer    ticket  dred  dollars. 


§375.     COMPLAINTS  [OR  PETITIONS]. 

FORM  No.  898 — Against  street  railway  corporation  for  damages  for  personal 
injuries  sustained  by  passenger  through  negligent  and  care- 
less starting  of  car. 

(In  Renfro  v.  Fresno  City  R.  Co.,  2  Cal.  App.  317;  84  Pac.  357.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  defendant  is,  and  at  all  the  times  named  in  this  complaint 
was,  a  corporation'  duly  incorporated  and  doing  business  under  the 
laws  of  the  state  of  California,  and  during  all  of  said  time  was  and  is 
the  owner  of  and  operating  certain  street  railways  on  and  along  cer- 
tain public  streets  in  the  city  of  Fresno,  in  the  county  of  Fresno,  and 
state  of  California,  including  a  certain  railway  running  over  and 
along  that  certain  street  in  said  city  known  as  Blackstone  Avenue, 
extending  along  said  Blackstone  Avenue  to  a  point  at  or  near  the 
intersection  of  said  Blackstone  Avenue  with  the  south  line  of  Bel- 
mont Avenue ;  that  defendant  is  the  owner  of  the  track,  rolling-stock, 
and  other  appliances  thereto  belonging,  and  was  at  the  time  herein 
mentioned,  and  it  still  is,  a  common  carrier  of  passengers  for  hire 
over  its  said  street  railways. 


Ch.  CV1II.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1485 

2.  That  on  or  about  the  4th  day  of  February,  1904,  the  defendant, 
in  consideration  of  the  sum  of  five  cents  then  paid  to  it  by  plaintiff 
therefor,  undertook  and  agreed  as  such  common  carrier  to  transport 
and  convey  the  plaintiff  over  its  said  railroad  along  Blackstone  Ave- 
nue to  the  terminus  of  said  railroad,  at  or  near  the  south  line  of 
Belmont  Avenue,  as  a  passenger,  and  plaintiff  thereupon  entered  one 
of  the  cars  of  said  defendant  to  be  so  conveyed. 

3.  That  while  plaintiff  was  as  such  passenger  on  said  car,  and 
being  so  conveyed  thereon,  and  while  in  the  act  of  getting  out  of  and 
from  said  car,  and  being  still  thereon,  to  wit,  on  the  platform  and 
steps  thereof,  and  at  the  terminus  of  said  railroad  near  Belmont 
Avenue  as  aforesaid,  and  at  the  place  where  said  car  usually  stopped 
for  passengers  to  alight  therefrom,  and  while  said  car  had  slowed  up 
for  the  purpose  of  permitting  passengers  to  get  off  from  said  car,  the 
employees  of  said  defendant  who  were  then  and  there  running  said 
car,  and  had  the  same  under  their  charge  and  control,  negligently  and 
carelessly  caused  said  car  to  be  suddenly  and  violently  jerked  and 
started  and  put  in  rapid  motion  without  allowing  plaintiff  sufficient 
time  to  alight  therefrom ;  that  in  consequence  of  said  negligent  and 
careless  action  of  said  defendant's  employees,  and  without  any  fault 
or  negligence  on  the  part  of  plaintiff,  and  as  a  further  consequence 
of  the  negligence  and  carelessness  of  defendant's  said  employees  in 
running  and  conducting  said  car,  plaintiff  was  violently  thrown  from 
said  car  to  the  ground  and  thereby  sustained  the  following  described 
injuries,  to  wit :  He  was  greatly  injured,  bruised  and  crippled  in  his 
body  and  right  leg,  and  the  femur,  commonly  known  as  the  thigh- 
bone, was  fractured,  by  reason  whereof  plaintiff  has  been  unable  to 
bes,r  but  little  weight  upon  his  right  leg,  and  has  been  unable  to  walk 
except  with  the  aid  of  crutches,  and  by  reason  whereof  plaintiff  was 
made  sick  and  confined  to  his  house  for  a  long  time,  and  has  suffered, 
and  does  suffer,  great  bodily  pain  and  mental  anguish,  and  has  been 
unable  to  do  any  work  or  to  attend  to  any  business  since  said  4th  day 
of  February,  1904.  Plaintiff  is  informed  and  believes,  and  upon  such 
information  and  belief  alleges,  that  his  injuries  are  of  a  permanent 
character,  and  on  account  thereof  plaintiff  is  and  will  be  incapaci- 
tated permanently  from  working  at  his  trade  and  business  or  earning 
a  livelihood ;  that  plaintiff  is  a  bricklayer  by  trade,  and  before  receiv- 
ing said  injuries  was  able  to  and  did  secure  continuous  employment 
at  his  trade,  and  received  therefor  the  sum  of  $6  per  day ;  that  were  it 


I486  INJURIES  TO  PASSENGERS,  ETC.  [Tit.  X1I1. 

not  for  said  injuries  plaintiff  would  now  be  able  to  earn  said  sum  of 
$6  per  day;  that  plaintiff  has  been  thereby  damaged  in  the  sum  of 
$726;  that  plaintiff  was  made  sick  on  account  of  said  injuries,  and 
was  compelled  to  and  did  employ  physicians  to  attend  to  him  in  his 
said  sickness,  and  has  become  obligated  to  said  physicians  for  their 
services  in  the  additional  sum  of  $25. 

4.  That  plaintiff  has  been  and  is  damaged,  on  account  of  said 
injuries  so  received  by  him,  in  all,  in  the  sum  of  $10,000. 

Wherefore,  plaintiff  prays  judgment  against  said  defendant  for 
the  sum  of  $10,000  damages,  and  for  costs  of  suit. 

Harris  &  Perkins, 

[Verification.]  Attorneys  for  plaintiff. 

FORM    No.  899 — Against  common  carrier,  for  personal  injuries  resulting  from 
wrongful  ejection  of  passenger  from  street-car. 

(In  Braly  v.  Fresno  City  R.  Co.,  9  Cal.  App.  417;  99  Pac.  400.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1-4.  [After  the  usual  averments  as  to  the  incorporation  of  defend- 
ant company,  its  ownership  and  operation  of  street-car  lines,  desig- 
nating them ;  that  defendant  was  and  is  a  common  carrier  for  hire ; 
that  plaintiff  boarded  one  of  defendant's  cars  and  paid  his  fare,  and 
was  a  passenger  thereon,  etc.,  the  complaint  proceeds:]  That  after 
said  car  had  started  along  Stanislaus  Street  fare  was  again  demanded 
by  the  conductor  thereof  from  the  plaintiff,  *  *  *  which  plaint- 
iff refused  to  pay,  and  told  him  that  if  he  would  stop  the  car  he 
would  disembark;  that  thereupon  the  conductor  took  hold  of  the 
plaintiff  in  a  violent  and  disagreeable  manner,  and  began  to  scuffle 
with  and  otherwise  injure  and  mistreat  the  plaintiff,  and  solely  and 
only  as  a  result  thereof,  and  of  the  manner  in  which  plaintiff  was 
maltreated,  abused,  and  handled  by  the  conductor  of  said  car,  the 
agent  and  representative  of  said  defendant,  plaintiff  was  violently 
thrown  from  said  car  while  the  same  was  rapidly  moving,  and  at  a 
speed,  as  plaintiff  is  informed  and  believes,  of  about  fifteen  miles  an 
hour  or  more,  and  landed  upon  the  ground  upon  his  left  side,  strik- 
ing his  shoulder  and  head,  and  thereby  sustained  great  injury  and 
damage,  to  wit :  he  was  greatly  injured,  bruised,  and  crippled  in  his 
left  shoulder  and  arm,  and  upon  his  head  and  face ;  that  his  left  arm 
was  broken  and  shoulder  crushed,  and  he  was  permanently  injured 


Ch.  CVIII.J  COMPLAINTS   [OR  PETITIONS].— FORMS.  14y7 

and  crippled,  in  this,  that  he  thereby  permanently  lost  the  use  of  his 
left  arm  and  hand;  that  plaintiff  has  been  required  to  pay,  and  has 
paid,  large  sums  of  money  to  doctors,  physicians,  and  surgeons  in  the 
care  and  treatment  of  the  injuries  so  occasioned,  and  also  hospital 
and  other  expenses  necessarily  incurred  because  of  said  injury,  said 
sums  amounting,  in  the  aggregate,  to  the  sum  of  $250;  that,  further- 
more, plaintiff  has  been  and  is  damaged  on  account  of  the  injuries  so 
received  by  him  in  the  sum  of  $10,000. 

Wherefore,  plaintiff  prays  for  judgment  against  the  defendant  for 
the  sum  of  $10,250,  and  for  his  costs  of  suit. 

L.  L.  Cory,  and 
M.  K.  Harris, 
[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  900 — For  damages  for  forcible  ejection  from  train. 

(In  Wieland  v.  Southern  Pacific  Co.,  1  Cal.  App.  343;  82  Pac.  226.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  the  defendant  is  now,  and  at  all  the  times  herein  men- 
tioned was,  a  corporation  organized  and  existing  under  and  by 
virtue  of  the  laws  of  the  state  of  Kentucky ;  and  at  all  times  herein 
mentioned  was  engaged  in  the  business  of  a  common  carrier  of  pas- 
sengers for  hire  between  the  places  of  its  line  of  railroad  hereinafter 
mentioned. 

2.  That  on  or  about  the  18th  day  of  June,  1902,  plaintiff  was 
desirous  of  being  conveyed  from  the  city  of  Fresno,  county  of  Fresno, 
state  of  California,  to  the  station  of  Rolincla,  in  said  county  and 
state,  upon  one  of  defendant's  railroad  trains,  and  on  or  about  said 
day  and  at  and  in  the  city  of  Fresno,  and  for  the  purpose  aforesaid, 
plaintiff  got  aboard  one  of  defendant's  railroad  trains;  that  the  train 
which  plaintiff  got  aboard  as  aforesaid,  and  in  which  he  desired  to 
be  conveyed  to  said  station  of  Rolinda,  was  at  the  date  aforesaid,  and 
had  been  for  a  long  time  prior  thereto,  regularly  used  and  employed 
by  defendant  for  the  purpose,  among  other  things,  of  carrying  pas- 
sengers for  hire  from  said  city  of  Fresno  to  said  station  of  Rolinda. 
and,  in  pursuance  of  said  purpose,  the  rules  and  regulations  of  said 
defendant  permitted  said  train  to  stop  at  said  station  of  Rolinda. 


1488  INJURIES  TO  PASSENGERS,  ETC.  [Tit.  XIII. 

3.  That  soon  after  leaving  said  city  of  Fresno  on  said  train,  plaint- 
iff, in  conformity  with  the  rules  of  defendant,  paid  to  one  of  the 
agents  of  defendant,  to  wit,  the  conductor  of  said  train,  the  full 
amount  of  fare  regularly  charged  by  said  defendant  as  hire  for  con- 
veying a  passenger  from  said  city  of  Fresno  to  said  station  of  Ro- 
linda ;  that  said  fare  was  duly  and  without  protest  accepted  by  said 
conductor  and  said  fare  was  not,  nor  was  any  part  thereof,  ever 
returned  to  plaintiff. 

4.  That  thereafter,  and  before  reaching  said  station  of  Rolinda, 
and  at  an  unusual  stopping-place  on  the  line  of  defendant's  railroad, 
and  far  from  any  dwelling-house,  the  conductor  of  said  train  forci- 
bly, oppressively,  and  maliciously,  and  with  great  force,  violence, 
and  rudeness,  expelled  and  ejected  plaintiff  from  said  train,  and 
refused  plaintiff  the  privilege  of  riding  on  said  train  the  remainder 
of  the  distance  to  said  station  of  Rolinda ;  that  at  the  time  of  being 
expelled  from  said  train  plaintiff  was  suffering  from  a  serious  ill- 
ness, and  was  able  to  walk  only  with  great  pain  and  difficulty,  of  all 
of  which  he  fully  informed  said  conductor;  that  on  being  ejected 
from  said  train  with  great  force  and  violence  as  aforesaid  plaintiff 
was  seriously  maimed  and  injured,  and  was  further  weakened  and 
rendered  unable  to  walk;  that  at  the  time  plaintiff  was  ejected  and 
expelled  from  said  train  it  was  already  late  in  the  evening,  to  wit, 
about  seven  o'clock  or  thereabouts,  and  soon  thereafter  became  dark, 
by  reason  of  all  of  which  it  was  impossible  for  plaintiff  to  reach  a 
place  where  he  could  receive  food  or  shelter  or  comfort;  *  *  * 
that  in  consequence  of  the  facts  set  forth  plaintiff  was  compelled  to 
lie  during  the  whole  of  the  night  following  his  expulsion  from  said 
train  in  an  open  field  at  or  near  the  point  where  he  was  expelled 
from  said  train,  and  was  without  food  or  shelter  or  medicines,  and 
suffered  great  pain  and  mental  anguish;  that  on  the  morning  fol- 
lowing plaintiff  was  so  weakened  and  ill  and  exhausted  that  it  was 
impossible  for  him  to  walk  or  secure  means  of  conveyance  from  said 
place,  and  he  was  compelled  to  lie  at  or  near  said  place  during  the 
entire  day  following  without  food  or  shelter  or  comfort  or  medicine, 
to  his  great  and  permanent  injury  and  damage. 

5.  That  by  reason  of  defendant's  negligence  as  aforesaid,  as  in  the 
paragraph  above  set  forth,  plaintiff  was  seriously  and  permanently 
injured,  and  suffered,  and  still  suffers,  great  physical  pain  and  great 
mental  distress  and  anguish,  and  became  and  continued  to  be  sore. 


•Ch.  CVIII.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1489 

maimed,  and  crippled;  that  he  has  been,  and  will  continue  to  be, 
incapacitated  and  prevented  from  carrying  on  his  usual  occupation, 
which  was  that  of  a  laborer,  and  from  which  he  was  earning  prior  to 
said  injury  $30  per  month ;  that  he  has  necessarily  expended  the  sum 
of  $50  for  medical  treatment  as  the  result  of  said  injury,  all  to  the 
great  and  permanent  damage  of  plaintiff  in  the  sum  of  $10,000. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  $10,000,  and  for  costs  of  suit. 

Henry  Brickley,  and 
George  Cosgrave, 

[Verification.]  Attorneys  for  plaintiff. 

FORM    No.  901 — For    personal    injuries    suffered    by    wife. — Joining    of    hus- 
band in  the  action. 

(In  Choctaw  etc.  R.  Co.  v.  Burgess,  21  Okla.  653;  97  Pac.  271.) l 
[Title  of  court  and  cause.] 

Comes  now  the  plaintiffs,  Myra  Burgess  and  W.  N.  Burgess,  her 
husband,  and  state : 

1.  That  plaintiffs  are  wife  and  husband,  and  both  are  citizens  of  the 
United  States,  residing  in  the  southern  district  of  the  Indian  Terri- 
tory; that  the  defendant,  the  Choctaw,  Oklahoma,  and  Gulf  Railroad 
Company,  is  a  corporation  duly  organized,  existing,  and  doing  busi- 
ness in  the  Indian  Territory  under  and  by  virtue  of  the  laws  in  force 
in  said  territory,  and  as  such  is  authorized  and  empowered  to  sue 
and  be  sued  in  its  corporate  name. 

2.  That  defendant  company  now  is,  and  continuously  during  all 
the  dates  herein  mentioned  has  been,  the  owner  of,  and  operating,  a 
railroad  in  and  through  the  Indian  Territory,  and  in  and  between 
the  town  of  Ardmore,  in  the  southern  district,  and  the  town  of 
Haileyville,  in  the  central  district  of  said  territory,  and  in,  through, 
and  between  the  town  of  Provence  and  the  town  of  Mannsville,  in 
said  southern  district  of  the  Indian  Territory,  and  at  said  towns  has 
and  maintains  depots  and  stations,  and  on  said  railroad  runs  and 

i  With  reference  to  the  joining  of  the  husband  in  the  action  of  Choctaw  etc. 
R.  Co.  v.  Burgess,  supra,  the  court  held  that  it  was  not  necessary  to  construe  the 
statute  providing  "that  where  a  married  woman  is  a  party,  her  husband  must  be 
joined  with  her,  except  in  the  following  cases:  *  «  •  sne  may  maintain  an 
action  in  her  own  name  •  »  *  for  damages  against  any  person  or  body  cor- 
porate for  any  injury  to  her  person,  character,  or  property":  Mansf.  Dig.  Ark. 
1884,  §  4951,  extended  by  act  of  Congress  to  the  Indian  Territory  (Ann.  Stats.  1889, 
13156). 


]490  INJURIES  TO  PASSENGERS,  ETC.  [Tit.  XIII. 

operates  engines  and  cars  for  the  accommodation  and  transportation 
of  passengers  and  freight,  and  was  during  all  said  times,  and  now  is. 
a  common  carrier  of  passengers  for  hire. 

3.  That  heretofore,  to  wit,  on  the  1st  day  of  December,  1903,  the 
plaintiff  Myra  Burgess  went  to  the  depot  and  station  of  defendant 
company  at  the  town  of  Provence,  and  went  aboard  the  passenger 
cars  of  defendant  at  said  station,  and  became  a  passenger  of  defend- 
ant company,  for  the  purpose  of  being  carried  and  transported  from 
said  town  of  Provence  to  the  said  town  of  Mannsville. 

4.  That  on  said  date  defendant  was  running  and  operating  an 
engine  and  cars,  constituting  the  passenger  train,  on  said  line  of  rail- 
road between  the  said  town  of  Provence  and  the  town  of  Mannsville ; 
that  defendant  company,  by  and  through  its  agents  and  employees, 
stopped  said  train  at  said  town  of  Provence,  and  plaintiff  Myra 
Burgess  attempted  to  board  said  train;  that  at  the  time  she  was 
aboard  said  train,  and  had  gotten  on  the  steps  of  one  of  said  cars, 
the  defendant  company,  by  and  through  its  agents,  servants,  and 
employees  in  charge  of  said  train,  carelessly  and  negligently,  and 
without  regard  to  the  safety  of  plaintiff  Myra  Burgess,  started  and 
moved  said  train  in  a  quick,  rapid,  careless,  and  negligent  manner, 
and  thereby  threw  her  forcibly  and  violently  upon  and  against  an 
iron  railing  upon  said  car,  and  upon  and  against  other  parts  of  said 
car,  and  thereby  severely  bruised  her  left  arm  above  the  elbow, 
bruised  and  wounded  and  injured  her  on  the  right  side  of  the  bowels 
and  just  above  the  pelvis  bone,  and  in  her  head,  back,  bowels, 
organs  of  generation,  and  other  parts  of  her  body;  that  at  the  time 
of  the  infliction  of  said  injuries  as  aforesaid  the  plaintiff  Myra 
Burgess  was  pregnant,  [and  by  reason  of  said  injuries  she  has  been 
constantly  threatened  with  miscarriage,]  2  and  has  at  all  times  been 
under  the  care  of  a  physician;  that,  by  reason  of  the  careless  and 
negligent  infliction  of  said  injuries  as  aforesaid,  the  plaintiff  Myra 
Burgess  received  a  great  shock  to  her  nervous  system  such  as  has 
impaired  and  will  permanently  impair  her  general  health,  that  will 
shorten  her  life,  and,  together  with  said  injuries,  will  cause  her  life 
to  be  one  of  continued  suffering  and  pain. 

2  A  demurrer  to  the  complaint  in  Choctaw  etc.  Co.  v.  Burgess,  supra,  shown 
in  form  No.  901,  was  sustained  as  to  the  allegation  contained  in  said  complaint 
that  the  plaintiff  was  threatened  with  miscarriage  as  a  result  of  the  injuries 
sustained,  but  in  all  other  respects  the  demurrer  was  overruled,  and  judgment 
for  the  plaintiff  was  finally  affirmed. 


Cli.  CVIII.J  COMPLAINTS  [OR  PETITIONS].— FORMS.  1491 

That  by  reason  of  such  injuries  so  produced  the  plaintiff  Myra 
Burgess  has  constantly  and  continually  and  ever  since  suffered  and 
endured  great  mental  injury  and  agony. 

That  since  the  infliction  of  said  injuries  as  aforesaid,  plaintiffs 
have  been  compelled  to  expend  for  medicines  and  care  of  a  physician 
for  plaintiff  Myra  Burgess  the  sum  of  $300;  that  by  reason  of  the 
foregoing  facts  plaintiffs  allege  that  the  plaintiff  Myra  Burgess  has 
been  damaged  in  the  sum  of  $25,000. 

[Prayer.]  Cruce  &  Bleakmore, 

[Verification.]  Attorneys  for  plaintiffs. 

FORM    No.  902 — By   passenger,   for   damages   caused    by   negligent   operation 
of  an  elevator. 

(In  Cragg  v.  Los  Angeles  Trust  Co.,  154  Cal.  663;  98  Pac.  1063.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  defendant  is  a  corporation  duly  organized  and  existing 
under  the  laws  of  the  state  of  California,  and  at  all  times  herein  men- 
tioned was,  and  now  is,  the  owner  of,  and  in  possession  of  and  occu- 
pying, the  building  hereinafter  mentioned,  and  as  a  part  of  the  use 
of  said  building  operated  the  elevator  therein,  hereinafter  men- 
tioned. 

2.  That  on  the  26th  day  of  October,  1906,  plaintiff  was  in  the 
employ  of  defendant,  and  it  was  his  duty  in  the  service  of  the  defend- 
ant to  remove  a  galvanized  iron  barrel  or  can  from  the  second  floor 
of  said  building  to  the  ground  floor;  that  said  building  is  a  seven- 
story  building,  on  the  corner  of  Second  and  Spring  streets  in  the  city 
of  Los  Angeles,  county  of  Los  Angeles,  state  of  California ;  that  in  the 
performance  of  said  duty  it  was  necessary  that  the  plaintiff  should, 
and  he  was  obliged  to,  enter  the  elevator  operated  by  defendant  in 
said  building  and  place  therein  said  barrel  or  can;  that  on  said  26th 
day  of  October,  1906,  about  half-past  7  o'clock  in  the  morning,  as 
plaintiff  entered  said  elevator  to  place  therein  said  barrel  or  can, 
defendant  negligently  allowed  and  caused  said  elevator  suddenly 
and  unexpectedly  to  be  abruptly  or  improperly  started  in  such  a 
manner  as  to,  and  defendant  did  thereby,  precipitate  plaintiff  against 
the  wall  of  the  shaft  in  which  said  elevator  ascended  and  descended, 
and  crushed  plaintiff  between  said  elevator  car  and  wall,  breaking 
his  jawbone,  disfiguring  his  face,  and  otherwise  injuring  him. 


1492  INJURIES  TO  PASSENGERS,  ETC.  [Tit.  XIII. 

3.  That  because  of  such  injuries  plaintiff  has  been  compelled  to 
employ  a  doctor  at  an  expense,  up  to  this  time,  of  $72,  and  has  paid 
more  than  $20  for  medicines,  bandages,  and  dressing  for  his  wounded 
face,  and  $16  for  a  nurse;  that  plaintiff  was  further  thereby  ren- 
dered and  made  unable  to  pursue  his  usual  or  any  vocation  up  to  this 
time,  to  his  loss  in  the  sum  of  $75,  all  of  which  was  rendered  neces- 
sary and  occasioned  by  said  negligence  of  defendant. 

4.  That  by  reason  of  said  negligent  crushing,  bruising,  and  disfig- 
uring of  plaintiff  by  defendant  plaintiff  has  been  further  damaged  in 
the  additional  sum  of  $2,000. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the  sum 
of  $2,187,  and  for  costs  of  suit. 

Wellborn  &  Wellborn, 
[Verification.]  Attorneys  for  plaintiff. 

Form  of  complaint  in  an  action  to  recover  damages  for  injuries  to  plaintiff's 
person,  caused  by  the  falling  of  an  hydraulic  elevator  operated  by  defendants  in 
their  store:  Treadwell  v.  Whittier,  80  Cal.  574,  576,  22  Pac.  266,  13  Am.  St.  Rep. 
175,    5   L.   R.   A.    498. 

Form  of  complaint  in  an  action  to  recover  damages  for  mistreatment  while  a 
passenger  on  a  boat:  Mace  v.  Reed,  89  Wis.  440,  441,  62  N.  W.  186,  187. 

§376.     ANNOTATIONS. — Negligence    of    carriers. — Actions    for    injuries    to 
passengers  not  resulting  in  death. 

1.  Nature  of  action  against  carrier. 

2.  Action  ex  delicto. — Pleading  contract  as  matter  of   inducement. 

3.  General  negligence. — Averment  of. 

4,  5.  Action  for  wrongful  expulsion. — What  action  will  be. 

6.  Averment  as  to  payment  or  tender  of  fare. 

7.  Complaint  charging  gross   negligence. 

8.  Instruction  as  to  damages  for  mental  suffering,   etc. 

9.  Alleging  cause  of  derailment  of  car  not  required. 

10.  Proof  of  derailment  of  car. 

11.  Motion  for  nonsuit. — Statement  of  grounds. 

1.  Nature  of  action  against  carrier. —  alleges  the  payment  of  his  fare  and  the 
An  action  against  a  carrier  for  breach  promise  of  the  company  to  carry  him, 
of  contract  may  be  for  the  breach  or  in  and  then  proceeds  to  state  the  tort,  and 
tort  for  a  violation  of  duty  as  common  his  claim  for  damages  arising  on  account 
carrier:  Sloane  v.  Southern  California  R.  thereof,  the  action  is  declared  to  be  one 
Co.,  Ill  Cal.  668,  677,  44  Pac.  320,  32  in  tort,  for  the  reason  that  the  grava- 
L.  R.  A.  193.  See  Jones  v.  Steamship  men  or  gist  of  the  action  proceeds  ex 
Cortes,  17  Cal.  487,  79  Am.  Dec.  142.  delicto  on  the  breach  of  the  duty  owing 

2.  Action  ex  delicto. — Pleading  con-  to  the  public  imposed  by  law:  Canady 
tract  as  matter  of  Inducement. — When  v.  United  R.  Co.,  134  Mo.  App.  282,  114 
an  action  against  a  carrier  sounds  in  S.  W.  88,  90;  Denver  etc.  R.  Co.  v.  Cloud, 
tort,  the  allegation  of  the  contract  of  6  Colo.  App.  445,  40  Pac.  779;  Head  v. 
carriage  is  regarded  as  mere  inducement  Georgia  etc.  R.  Co.,  79  Ga.  358,  7  S.  B. 
to  the  action  to  show  the  plaintiff's  right  217,  11  Am.  St.  Rep.  434;  Ames  v.  United 
to  sue  as  a  passenger.  Therefore,  in  R.  Co.,  117  Mass.  541,  19  Am.  Rep.  426; 
cases   of   this   class,    where   the  plaintiff  Hammond  v.   Railway  Co.,   6  S.   C.   130, 


Ch.  CVIII.] 


ANNOTATIONS. 


1493 


137,  24  Am.  Rep.  467;  Brown  v.  Railroad 
Co.,  54  Wis.  342,  347,  11  N.  W.  356,  911, 
41  Am.  Rep.   41. 

3.  General  negligence. — Averment  of. — 
The  following  is  an  example  of  an  aver- 
ment of  general  negligence:  "The  de- 
fendant carelessly  and  negligently  caused 
and  permitted  the  train  on  which  plaint- 
iff was  riding  as  a  passenger  to  come  in 
violent  collision  with  another  train  of 
defendant's,  said  other  train  being  on 
said  Street,  and  on  said  incline 
as  aforesaid;  that  said  collision  was  oc- 
casioned without  any  fault  on  the  part 
of  the  plaintiff,  but  by  reason  of  the 
negligence  as  aforesaid  of  the  defend- 
ant": Price  v.  Metropolitan  S.  R.  Co., 
220  Mo.  435,  119  S.  W.  932,  937,  132  Am. 
St.   Rep.   588. 

4.  An  action  for  wrongful  expulsion 
with  force  and  violence  is  in  effect  an 
action  for  tort  for  breach  of  duty:  Gor- 
man v.  Southern  Pacific  Co.,  97  Cal.  1, 
6,  31  Pac.  1112,  33  Am.  St.  Rep.  157. 
See  Pittsburgh  etc.  R.  Co.  v.  Reynolds, 
55  Ohio  St.  370,  45  N.  E.  712;  60  Am. 
St.  Rep.  706;  Northern  Pacific  R.  Co. 
V.  Pauson,  70  Fed.  585,  17  C.  C.  A.  287, 
30  L.   R.  A.   730. 

5.  Action  In  tort  or  on  the  case  will 
He  to  recover  damages  for  wrongful  ex- 
pulsion: Gorman  v.  Southern  Pacific 
Co.,  97  Cal.  1,  6,  31  Pac.  1112,  33  Am. 
St.    Rep.    157. 

6.  Averment  as  to  payment  or  tender 
of  fare. — It  is  not  necessary  that  the 
plaintiff  allege  strictly  a  legal  tender  of 
fare;  it  is  sufficient  to  allege  that  he 
was  ready  and  willing  and  offered  to 
pay  the  defendant  such  sum  of  money 
as  it  was  legally  entitled  to  charge. 
Whenever  performance  of  a  duty  or  ob- 
ligation is  cast  upon  one  party  in  con- 
sequence of  the  contemporaneous  act  of 
payment  by  the  other,  it  is  sufficient  if 
the  latter  is  ready  and  willing  to  pay 
when  the  former  is  ready  to  undertake 
the  duty:  Tarbell  v.  Central  Pacific 
R.  Co.,  34  Cal.  616,  622.  See  White  v. 
Chesapeake  R.  Co.,  26  W.  Va.  800,  805, 
and  note  77  Am.  Dec.   474. 

7.  Complaint  charging  gross  negli- 
gence should  set  forth  by  averments 
that  the  act  or  omission  causing  the 
injury  complained  of  had  been  wanton, 
or  wilful:  Gould  v.  Merrill  R.  &  L.  Co., 
139  Wis.  433,  121  N.  W.  161,  164,  (obiter). 

8.  Instruction  as  to  damages  for  men- 
tal suffering,  etc. — Where  the  defend- 
ant is  fairly  advised  by  the  allegations 

Jury's  PL— 95. 


of  the  pleading  that  a  recovery  would 
be  sought  for  mental  and  physical  suf- 
fering of  a  wife  resulting  in  being  car- 
ried beyond  their  station  while  with  her 
husband  as  a  passenger  on  a  train,  and 
where  no  exception  to  the  petition  for 
morp  specific  allegations  was  presented 
to  the  court,  it  can  not  be  said  that 
the  court  erred  in  instructing  the  jury, 
in  effect,  that  damages,  if  any,  were 
recoverable  for  mental  and  physical  suf- 
fering of  the  wife  caused  by  the  walk 
back  to  her  station:  St.  Louis  etc.  R. 
Co.  v.  Franks  (Tex.  Civ.  App.),  114  S. 
W.  874,   876. 

9.  Alleging  cause  of  derailment  of  car 
not  required. — No  duty  rests  upon  a 
plaintiff  who  was  a  passenger  to  allege 
or  prove  in  his  affirmative  case  the  par- 
ticular cause  of  a  derailment  in  which 
he  was  injured,  and  where  such  allega- 
tions appear,  they  are  treated  as  sur- 
plusage. He  may  rely  upon  his  prima 
facie  case  without  attempting  to  sub- 
stantiate them:  Hoskins  v.  Northern 
Pacific  R.  Co.,  39  Mont.  394,  102  Pac. 
9*8,  990,  overruling  views  in  conflict 
with  this  expression  in  Pierce  v.  Great 
Falls  etc.  R.  Co.,  22  Mont.  446,  56  Pac. 
867. 

10.  Proof  of  derailment  of  a  car,  in- 
consequence of  which  a  passenger 
therein  was  injured,  is  ordinarily  prima 
facie  evidence  of  negligence  on  the  part 
of  the  common  carrier.  For  this  reason 
no  necessity  exists  for  the  passenger  to 
allege  the  particular  cause  of  the  de- 
railment: Hoskins  v.  Northern  Pacific 
R.  Co.,  39  Mont.  394,  102  Pac.  988,  990. 

11.  Motion  for  nonsuit. — Statement  of 
grounds. — In  an  action  against  a  rail- 
road corporation  for  alleged  negligence 
and  lack  of  care  in  allowing  its  rail- 
road tracks  to  become  out  of  repair,  the 
unsafe  condition  of  which  was  alleged 
to  have  caused  the  accident  in  which 
the  plaintiff  was  injured,  the  motion  for 
nonsuit  thereon  was  granted  and  judg- 
ment on  appeal  affirmed.  The  grounds 
of  the  motion  were  stated  as  follows: 
"On  the  ground  that  there  is  nothing  in 
the  derailment  of  a  train  that  creates 
a  presumption  of  negligence  in  the  case 
of  this  defendant;  that  there  is  no  proof 
that  plaintiff  was  a  passenger;  that 
there  has  been  no  proof  of  the  allega- 
tions of  excessive  speed,  or  negligence 
in  respect  to  defective  rails,  and  no 
proof  of  any  of  the  particular  [averments 
of]   negligence  alleged  in  the  complaint, 


1494  DEATH  BY   WRONGFUL  ACT.  [Tit.  XIII. 

and   no   proof   that   the   defendant   com-  schedule    time    is    not    any    evidence    of 
pany    had    allowed    its    track    to    become  negligence":     Hoskins    v.    Northern    Pa- 
out  of  repair  or  in  an  unsafe  condition,  cific  R.   Co.,   39  Mont.   394,   102  Pac.   988, 
and  also  upon  the  ground  that  the  mere  990. 
running    at    a    speed    in    excess    of    the 


CHAPTER    CIX. 

Death  by  Wrongful  Act. 

Page 

§  377.  Complaints   [or  petitions]    1494 

Form  No.  903.  Against  common  carrier  by  representative  of  a 
decedent,  for  damages  for  wrongful  death. — 
Decedent  a  passenger  on  defendant's  train..     1494 
Form  No.  904.  By  representative,  for  wrongful  death  caused  by 

collision   1495 

Form  No.  905.  By  heir  at  law  against  street  railway  corpora- 
tion, for  damages  resulting  from  the  death 
of  a  minor  child  caused  by  negligent  opera- 
tion of  street-cars 1496 

Form  No.  906.  By  husband  and  minor  children,  to  recover 
damages   for  death  of  wife   and  mother  of 

said   minors    1498 

§  378.  Replication   1500 

Form  No.  907.  In  action  by  administrator  for  wrongful  death 

of  passenger  on  overloaded  street-car 1500 

§  379.  Judgment  [or  decree]    1501 

Form  No.  908.  For  plaintiff  upon  verdict 1501 

§  380.  Annotations    1502 


§377.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  903 — Against   common    carrier   by   representative   of   a    decedent, 

for  damages  for  wrongful  death. — Decedent  a  passenger  on 

defendant's  train. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 
1.  [If  the  defendant  is  a  corporation  common  carrier,  allege:] 
That  the  defendant  was  at  the  times  hereinafter  mentioned  and  is  a 
corporation  created  by  and  under  the  laws  of  this  state,  and  was  and 
is  a  common  carrier  of  persons  and  property  for  hire,  between  the 
places  hereinafter  mentioned,  and  was  the  owner  and  in  possession  of 
the  cars,  train  of  cars,  and  railroad  tracks  hereinafter  mentioned, 
and  during  all  said  times  was,  and  it  still  is,  engaged  in  operating 
said  cars  and  trains  over  said  tracks. 


Ch.  CIX.]  COMPLAINTS    [OR    PETITIONS].— FORMS.  1495 

2.  That  on  the  day  of  ,  19  ,  by  the  order  of  the 
court  of  the  county  of  ,  in  the  state  aforesaid,  duly  given  and 
made,  the  plaintiff,  ,  was  appointed  executor  [or  adminis- 
trator] of  the  estate  of  L.  M.,  deceased,  and  letters  testamentary  [or 
of  administration]  on  said  estate  were  ordered  to  issue  to  plaintiff 
upon  qualifying;  that  the  plaintiff  thereafter  duly  qualified  as  such 
executor  [or  administrator],  and  thereupon  letters  testamentary  [or 
of  administration]  were  issued  to  plaintiff  on  the  day  of  , 
19  ,  and  plaintiff  is  now,  and  ever  since  has  been,  the  duly  qualified 
and  acting  executor  [or  administrator]  of  the  estate  of  said  L.  M., 
deceased. 

3.  That  on  the  day  of  ,  19  ,  the  defendant,  in  con- 
sideration of  the  sum  of  $  ,  paid  as  fare  by  said  L.  M.,  received 
the  said  L.  M.  as  a  passenger  on  said  railroad  from  to 

4.  That  on  said  last-named  day  [or  state  when],  and  while  said 
L.  M.  was  on  the  cars  on  the  said  journey,  at  ,  and  in  this  state, 
the  car  in  which  L.  M.  was  passenger,  by  the  negligence  of  the 
defendant  and  its  servants,  was  thrown  from  the  track,  and  said 
L.  M.  was,  without  fault  on  his  part,  thereupon  and  thereby  immedi- 
ately killed. 

5.  That  said  L.  M.  left  him  surviving,  as  his  only  heirs,  E.  M.,  his 
widow,  and  F.  M.,  his  daughter,  a  child  of  years,  and  G.  M.,  his 
son,  a  child  of  years,  [etc.]  his  only  children,  and  next  of  kin, 
all  of  whom  were  dependent  upon  him  for  support;  that  said  chil- 
dren were  also  dependent  upon  the  said  L.  M.  for  nurture  and  edu- 
cation ;  that  thereby  said  E.  M.,  F.  M.,  and  G.  M.,  [etc.,]  have  been 
injured  by  the  death  of  L.  M.  in  the  amount  of  $ 

Wherefore,  the  plaintiff,  as  such  administrator  [or  executor],  asks 
judgment  in  said  amount  of  $  ,  and  for  such  other  relief  as  may 

be  proper,  and  for  costs. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  904 — By  representative,  for  wrongful  death  caused  by  collision. 

[Title  of  court  and  cause.] 

1-3.   [Same  as  in  preceding  form.] 

4.  That  the  defendant  and  its  servants  and  employees  so  negli- 
gently and  unskilfully  conducted  itself  and  themselves  in  the  man- 
agement of  said  train  of  cars,  and  in  not  keeping  the  track  of  said 


1496  DEATH  BY  WRONGFUL  ACT.  [Tit.  XIII. 

railroad  clear  of  other  cars  [or  state  such  other  acts  of  defendant  as 
may  have  caused  the  injury  complained  of],  that  said  train,  while 
proceeding  from  to  ,  was  violently  run  into  by  and  col- 

lided with  another  train  running  [or  standing]  on  said  track,  thereby 
causing  the  car  in  which  said  [decedent]  was  traveling  to  become 
wrecked  [or  allege  other  facts,  describing  how  said  train  was  wrecked 
or  thrown  from  the  tracks,  as  the  case  may  be],  and  the  said  [naming 
decedent]  was  thereby  fatally  injured,  his  death  resulting  immedi- 
ately therefrom  [or  state  when  death  so  resulted]. 

5.   [Same  as  paragraph  5  in  preceding  form.] 

[Concluding  part.] 

FORM  No.  905 — By  heir  at  law  against  street  railway  corporation,  for  dam- 
ages resulting  from  the  death  of  a  minor  child  caused  by 
negligent  operation  of  street-cars. 

(In  Schneider  v.  Market  Street  R.  Co.,  134  Cal.  482;  66  Pac.  734.) 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  she  is  the  mother  of  Carl  Richard  Schneider,  hereinafter 
mentioned,  and  his  only  surviving  heir  at  law. 

2.  That  at  all  the  times  herein  mentioned  defendant  was,  and  now 
is,  a  corporation  duly  organized  under  the  laws  of  the  state  of  Cali- 
fornia, with  its  principal  place  of  business  at  the  city  and  county  of 
San  Francisco,  state  of  California. 

3.  That  at  all  the  times  hereinafter  mentioned  the  defendant  was 
the  owner,  and  in  the  possession  of,  and  employed  in,  the  manage- 
ment and  operation  of  certain  street  railroads  in  the  city  and  county 
of  San  Francisco,  together  with  the  cars,  rolling-stock,  and  appur- 
tenances thereof. 

4.  That  upon  the  9th  day  of  December,  1898,  defendant  was  operat- 
ing its  system  of  street  railroads  upon  East  Street,  in  said  city  and 
county,  and  was  engaged  in  running  street-cars  over  and  upon  said 
street. 

5.  That  upon  the  said  9th  day  of  December,  1898,  at  about  the  hour 
at  6:30  o'clock  P.  M.,  Carl  Richard  Schneider  was  crossing  East 
Street  where  the  same  intersects  with  Pacific  Street,  in  said  city  and 
county. 

6.  That  while  said  Carl  Richard  Schneider  was  crossing  East 
Street  aforesaid  where  the  same  intersects  with  Pacific  Street,  a  car 


Ch.  CIX.]  COMPLAINTS    [OR    PETITIONS].— FORMS.  1497 

of  said  defendant,  The  Market  Street  Eailway  Company,  ii?  charge  of 
its  agents,  servants,  and  employees,  crossed  Pacific  Street  where  it 
intersects  with  East  Street,  going  towards  the  north  along  East 
Street  at  a  high  rate  of  speed,  to  wit,  in  excess  of  eight  miles  per 
hour,  and,  without  ringing  a  bell  or  sounding  a  gong,  or  without  any 
other  warning  or  any  warning,  violently  struck  said  Carl  Richard 
Schneider  in  the  head,  fracturing  his  skull  and  killing  him  instantly. 

7.  That  in  crossing  East  Street  where  the  same  intersects  with 
Pacific  Street,  in  said  city  and  county  of  San  Francisco,  the  defendant 
and  the  persons  in  charge  of  said  car,  to  wit,  the  conductor  and 
motorman,  permitted  said  car  to  approach  said  street-crossing  within 
a  distance  of  twenty-five  feet  and  less,  without  ringing  a  bell  or 
sounding  a  gong,  nor  was  any  such  bell  or  gong  rung  or  sounded  at 
all  while  said  car  was  approaching  or  passing  over  said  street-cross- 
ing. 

8.  That  at  all  the  times  herein  mentioned  there  was  in  full  force 
and  effect  in  said  city  and  county  of  San  Francisco  a  certain  ordi- 
nance, duly  and  regularly  adopted  and  passed  by  the  board  of  super- 
visors thereof,  and  in  full  force  and  effect  on  and  after  November  11, 
1882,  and  known  as  order  No.  1694  of  the  board  of  supervisors  of 
the  city  and  county  of  San  Francisco,  by  which  said  order  it  was 
ordained  that  "It  shall  be  unlawful  for  the  engineer,  driver,  con- 
ductor, or  person  in  charge  of  any  street-car,  train  of  street-cars, 
grip-car,  or  dummy,  propelled  by  means  of  wire  ropes  attached  to 
stationary  steam-engines  or  a  locomotive  engine,  or  by  electric  motor, 
to  permit  said  street-car,  train  of  street-cars,  grip-car,  or  dummy,  to 
approach  a  street  crossing  in  said  city  and  county  within  a  distance 
of  twenty-five  feet  without  ringing  a  bell  or  sounding  a  gong,  which 
bell  or  gong  must  be  rung  or  sounded  until  said  street-car,  train  of 
street-cars,  grip-car,  or  dummy  car,  shall  have  passed  over  said 
street-crossing." 

9.  That  the  death  of  said  Carl  Richard  Schneider  resulted  directly 
and  proximately  from  the  gross  and  reckless  negligence  of  defend- 
ant, and  its  agents,  servants,  and  employees  in  charge  of  and  run- 
ning said  car  at  said  time,  to  wit,  first,  in  crossing  Pacific  Street 
where  it  intersects  with  East  Street,  at  a  high  rate  of  speed,  to  wit, 
in  excess  of  eight  miles  per  hour;  second,  in  permitting  said  car  to 
approach  Pacific  Street  where  the  same  intersects  with  East  Street, 


1498  DEATH  BY   WRONGFUL  ACT.  [Tit.  XIII. 

within  a  distance  of  twenty-five  feet  or  less,  without  ringing  a  bell 
or  sounding  a  gong. 

10.  [Same  as  paragraph  9,  omitting  the  specifications  of  negli- 
gence.] 

11.  That  by  reason  of  the  death  of  said  Carl  Richard  Schneider 
through  the  gross  and  reckless  negligence  of  the  defendant  and  its 
agents,  servants,  and  employees  in  charge  of  and  running  said  car  at 
«said  time,  plaintiff  has  been  greatly  damaged,  to  wit,  in  the  sum  of 
$25,000,  no  part  of  which  has  been  paid. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  $25,000,  together  with  costs  of  suit. 

"William  J.  Herrin, 
[Verification.]  Attorney  for  plaintiff. 

FORM   No.  906 — By    husband    and    minor   children,   to    recover   damages   for 
death  of  wife  and  mother  of  said  minors. 

(In  Johnson  v.  Southern  Pacific  R.  Co.,  154  Cal.  285;  97  Pac.  520.) 
[Title  of  court.] 

Frank  W.  Johnson,  and  Olin  W. 
Johnson  and  Leslie  H.  Johnson, 
by  C.  F.  Carrier,  their  guardian 
ad  litem,  plaintiffs, 
v. 

Southern  Pacific  Railroad  Com- 
pany, a  corporation,  defendant. 
[Introductory  part.] 

1.  That  the  plaintiff  Leslie  H.  Johnson  is  a  minor,  of  the  age  of 
seventeen  years,  and  plaintiff  Olin  W.  Johnson  is  a  minor,  of  the  age 
of  thirteen  years ;  that  on  the  1st  day  of  November,  1901,  the  superior 
court  of  the  county  of  Santa  Barbara,  state  of  California,  by  its 
order  duly  given  and  made  on  said  date,  appointed  C.  F.  Carrier,  an 
attorney  and  counselor  at  law  of  this  court,  guardian  ad  litem  for 
said  minor  plaintiffs  herein,  Leslie  H.  Johnson  and  Olin  W.  Johnson. 

2.  That  the  defendant  is,  and  was  at  all  the  times  hereinafter  men- 
tioned, a  corporation  duly  organized  and  existing  under  the  laws  of 
the  state  of  California,  for  the  purpose,  among  other  things,  of 
maintaining  and  operating  a  single  track  steam  railroad,  of  a  stand- 
ard gauge,  commencing  at  or  near  San  Miguel,  in  the  county  of  San 
Luis  Obispo,  and  running  thence  southerly  through  the  counties  of 


Ch.  CIX.]  COMPLAINTS    [OR    PETITIONS].— FORMS.  1499 

San  Luis  Obispo,  Santa  Barbara,  Ventura,  and  Los  Angeles,  to  and 
through  the  town  of  Sagus,  in  Los  Angeles  County;  that  at  all  the 
times  hereinafter  mentioned  defendant  was  maintaining  and  operat- 
ing such  steam  railroad,  and  was  the  owner  of  the  track,  rolling- 
stock,  and  other  appurtenances  thereto  belonging,  of  the  said  South- 
ern Pacific  Railroad  Company. 

3.  That  said  railroad,  above  five  miles  west  of  the  city  of  Santa 
Barbara,  crosses  obliquely  the  county  road  known  as  Hollister  Ave- 
nue, about  ninety  rods  east  of  the  place  where  the  road  known  as 
the  Modoc  Road  enters  said  Hollister  Avenue,  the  acute  angle  formed 
thereby  being  about  thirty  degrees ;  that  the  said  crossing  is  an  over- 
head one,  the  track  being  upon  the  bridge  over  said  road,  and  the 
public  road  excavated  so  as  to  pass  under  the  bridge,  and  being 
hedged  by  the  sides  of  the  cut  on  each  side ;  that  said  bridge  is  sup- 
ported by  three  abutments,  one  on  each  side  of  the  county  road  and 
one  in  the  middle;  that  the  space  between  said  abutments  is  about 
twelve  feet,  and  said  abutments  are  about  eighty  feet  in  length ;  that 
by  reason  of  trees  and  other  obstacles  the  view  up  and  down  the 
track  is  very  much  obstructed,  so  that  persons  driving  along  Hollister 
Avenue  can  not  see  approaching  trains ;  that  by  reason  of  the  said 
construction  of  said  crossing  the  same  is  a  dangerous  one  to  persons 
driving  along  Hollister  Avenue. 

4.  That  on  the  25th  day  of  July,  1901,  Katherine  S.  Johnson,  the 
wife  of  the  plaintiff  Frank  W.  Johnson,  and  the  mother  of  the  plaint- 
iffs Leslie  H.  Johnson  and  Olin  W.  Johnson,  was  driving  from  plaint- 
iffs' home  near  Goleta  along  Hollister  Avenue  towards  the  city  of 
Santa  Barbara,  and,  as  she  approached  said  crossing,  defendant 
caused  one  of  its  locomotives,  with  a  train  of  cars  attached  thereto,  to 
approach  said  crossing  at  a  high  rate  of  speed,  and  in  so  doing  disre- 
garded its  duty  to  give  signals  of  such  approach,  but,  on  the  contrary, 
caused  said  train  to  approach  negligently  and  carelessly  and  without 
signaling,  either  by  blowing  a  whistle  or  ringing  a  bell,  or  by  flag,  or 
otherwise ;  that  the  said  Katherine  S.  Johnson  was  therefore  unaware 
of  the  approach  of  said  train,  and  began  to  drive  under  said  crossing 
before  the  passage  of  said  train,  and  just  as  her  horse  and  wagon 
were  under  said  bridge  said  train  passed  over  the  same,  negligently 
and  carelessly  as  aforesaid. 

5.  That  in  consequence  of  the  dangerous  character  of  said  crossing 
.as  maintained  by  defendant,  and  of  the  failure  on  its  part  by  reason 


1500  DEATH  BY  WRONGFUL  ACT.  [Tit.  XIII. 

of  its  negligence  and  carelessness  to  give  the  proper  or  any  signal  as 
its  train  approached  said  crossing,  the  horse  of  said  Katherine  S. 
Johnson  was  frightened  and  ran  away,  and  she  was  thrown  violently 
out  of  the  wagon  and  killed. 

6.  That  by  reason  of  her  death  plaintiff  Frank  W.  Johnson  was- 
deprived  of  her  services  and  assistance  and  companionship,  and  the 
plaintiffs  Leslie  H.  Johnson  and  Olin  W.  Johnson  were  deprived  of 
the  care,  training,  and  society  of  their  said  mother,  and  plaintiffs 
have  been  damaged  thereby  in  the  sum  of  $20,000. 

AVherefore,  plaintiffs  pray  judgment  against  the  defendant  in  the 
sum  of  $20,000,  and  costs  of  suit.  Richards  &  Carrier, 

Attorneys  for  plaintiffs. 
C.  F.  Carrier, 

[Verification.]  Guardian  ad  litem  for  minor  plaintiffs. 

A  demurrer  to  the  complaint  in  form  No.  906  was  originally  sustained  by  the- 
trial  court,  but,  upon  appeal,  the  judgment  for  defendant  following  the  sustaining 
of  said  demurrer,  plaintiffs  declining  to  further  amend,  was  reversed:  Johnson  v. 
Southern  Pacific  R.  Co.,  147  Cal.  624,  82  Pac.  306,  1  L.  R.  A.  (N.  S.)  307;  s.  c, 
154  Cal.   285,  97  Pac.   520. 

For  defenses  to  actions  for  negligence  generally,  see  ch.  CV,  forms  Nos.  866-868. 

§378.     REPLICATION. 

FORM   No.  907 — In  action  by  administrator,  for  wrongful  death  of  passenger 
on  overloaded  street-car. 

(Adapted  from  Olston  v.  Oregon  etc.  R.  Co.,  52  Ore.  343;  96  Pac. 
1095;  97  Pac.  538;  20  L.  R.  A.  (N.  S.)  915m)1 

[Title  of  court  and  cause. 

Now  comes  the  plaintiff  and  replies  to  the  answer  of  the  defendant 
herein,  and  alleges  as  follows : 

1.  Plaintiff,  for  reply  to  said  answer,  denies  the  execution  of  the 

l  Fraud  In  procuring  contract  of  release  under  seal. — Defense  in  action  at  law 
as  affected  by  statute. — On  the  rehearing  of  the  case  from  which  the  foregoing 
form  is  taken,  the  court,  with  reference  to  the  defense  of  fraud  as  against  an 
instrument  under  seal,  says:  If  a  simple  contract  is  induced  by  fraud,  the 
defrauded  party  may  rescind  it  without  the  aid  of  equity,  and  may  plead  the 
fraud  in  defense  of  an  action  to  enforce  it  or  to  recover  damages  for  its  breach. 
The  seal  is  primary  evidence  of  a  consideration,  which  means  that  the  presump- 
tion thus  arising  may  be  overcome  by  evidence  to  the  contrary,  and  is  therefore 
subject  to  defenses  at  law,  the  same  as  a  simple  contract  in  which  the  considera- 
tion is  expressed:  Olston  v.  Oregon  etc.  R.  Co.  (Ore.),  97  Pac.  538,  citing  Brown 
v.  Freeman  &  Bynum,  79  Ala.  406;  Strayhorn  v.  Giles,  22  Ark.  517;  Aller  v.  Aller, 
40  N.  J.  446;  Milliken  v.  Thorndike,  103  Mass.  382;  Irving  v.  Thomas,  18  Me.  418; 
Williams  v.  Haines,  27  Iowa  251,  1  Am.  Rep.  268,  distinguishing  the  last  named 
case  as  to  the  force  of  the  Iowa  statute  from  the  case  of  Vandervelden  v.  Chicago 
etc.  R.  Co.  (C.  C),  61  Fed.  54,  in  which  it  was  held  that  such  defense  is  cogniz- 
able only  in  equity. 


Ch.  C1X.]  JUDGMENT   [OR  DECREE].— FORMS.  1501 

release  as  alleged  therein,  but  states  affirmatively  that,  being  induced 
by  false,  fraudulent,  and  unlawful  representations  made  by  defend- 
ant with  intent  to  defraud  and  deceive  him,  he  signed  the  said 
release  in  his  individual  capacity,  and  not  as  administrator  of  the 
estate  of  decedent,  and  that  thereafter  he  rescinded  said  settlement 
and  tendered  the  return  of  all  money,  checks,  and  deposits,  given  by 
the  defendant  for  said  release. 

2.  That  the  following  is  a  statement  of  the  facts  constituting  said 
false,  fraudulent,  and  unlawful  representations  made  by  defendant  to 
the  plaintiff,  and  because  of  which,  and  not  otherwise,  the  plaintiff 
signed  said  alleged  release:  [Here  are  alleged  the  facts  constituting 
the  fraud.] 

And  for  a  second  and  separate  reply,  plaintiff  alleges : 

That  said  release  and  settlement,  or  settlement,  is  not  binding  upon 
the  estate  of  the  decedent  or  his  personal  representatives,  for  the 
reason  that  the  same  was  made  without  an  order  of  the  county  court 
authorizing  the  same. 

Wherefore,  plaintiff  prays  that  said  release  be  rescinded  and  can- 
celed and  decreed  to  be  void  and  of  no  effect,  and  that  plaintiff  be 
awarded  the  relief  prayed  for  in  his  complaint  herein. 

A.  B.,  Attorney  for  plaintiff. 

§379.     JUDGMENT  [OR  DECREE]. 

FORM    No.  908— For  plaintiff  upon  verdict. 

(In  Johnson  v.  Southern  Pacific  R.  Co.,  154  Cal.  285;  97  Pac.  520.) 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  for  trial.  The  said  parties  appeared 
by  their  attorneys, — Richards  &  Carrier,  counsel  for  the  plaintiffs, 
and  Canfield  &  Starbuck,  for  defendant.  A  jury  of  twelve  persons 
were  regularly  impaneled  and  sworn  to  try  said  action.  Witnesses 
on  the  part  of  the  plaintiffs  and  defendant  were  sworn  and  examined. 
After  hearing  the  evidence,  the  arguments  of  counsel,  and  instruc- 
tions of  the  court,  the  jury  retired  to  consider  of  their  verdict,  and 
subsequently  returned  into  court  with  the  verdict,  signed  by  the 
foreman,  and,  being  called,  answered  to  their  names,  and  said:  "We, 
the  jury  in  this  cause,  find  a  verdict  for  the  plaintiff  for  $8,000." 

Wherefore,  by  virtue  of  the  law,  and  by  reason  of  the  premises 
aforesaid,  it  is  ordered,  adjudged,  and  decreed,  that  plaintiffs  have 
and  recover  from  defendant  the  sum  of  $8,000,  with  interest  thereon 


1502  DEATH  BY  WRONGFUL  ACT.  [Tit.  XIII. 

at  seven  per  cent  per  annum  from  the  date  hereof  until  paid,  together 
with  plaintiffs'  costs  and  disbursements  incurred  in  this  action, 
amounting  to  the  sum  of  $105.10. 

Dated,  February  2,  1906.  J.  W.  Taggart, 

Judge  of  the  Superior  Court. 

Forms  of  petition  [and  complaints]  in  actions  for  death  by  wrongful  act:  Atchi- 
son etc.  R.  Co.  v.  Cochran,  43  Kan.  225,  23  Pac.  151,  41  Am.  &  Eng.  R.  Cas.  48; 
Weber  v.  Atchison  etc.  R.  Co.,  54  Kan.  389,  390,  38  Pac.  569;  Galveston  etc.  R.  Co. 
v.  Leonard  (Tex.  Civ.  App.),  29  S.  W.  955;  Wellman  v.  Oregon  etc.  R.  Co.,  21  Ore. 
530,  531,  28  Pac.  625. 

Form  of  petition  in  an  action  by  an  administratrix  to  recover  damages  for  the 
death  of  her  husband,  caused,  as  alleged,  by  the  negligence  of  the  defendant  rail- 
road companies:    St.  Louis  etc.  R.  Co.  v.  Willis,  38  Kan.  330,  338,  16  Pac.  728. 

Form  of  answer  in  an  action  to  recover  damages  alleged  to  have  resulted  from 
wrongful  death  caused  by  the  gross  and  wanton  negligence  of  a  railroad  company: 
Limekiller  v.  Hannibal  etc.  R.  Co.,  33  Kan.  83,  5  Pac.  401,  52  Am.  St.  Rep.  523, 
19  Am.  &  Eng.  R.  Cas.  184. 

Form  of  answer  in  an  action  to  recover  damages  for  death  by  wrongful  act; 
action  brought  by  the  administrator  for  the  benefit  of  the  father  and  mother  of 
the  deceased:  Cherokee  etc.  Min.  Co.  v.  Britton,  3  Kan.  App.  292,  298,  45  Pac. 
100,    103. 

Form  of  instructions  to  jury  in  an  action  brought  to  recover  damages  for  death 
caused  by  the  negligent  explosion  by  defendant  of  a  blast,  whereby  the  plaintiff's 
intestate  was  killed:  Munro  v.  Pacific  Coast  Dredging  etc.  Co.,  84  Cal.  515,  516, 
24   Pac.  303,   18  Am.   St.   Rep.   248. 

§380.     ANNOTATIONS.— Death  by  wrongful  act. 

1.  Time  in  which  suit  must  be  brought. 

2.  Statutory  requirements   must  appear  in  the  petition. 

3.  Existence  of  beneficiaries  designated  by  the  statute  must  be  alleged. 

4.  Action   under  Arizona  statute. 

5.  Existence  of  beneficiaries. — When   not  required  to  allege. 

6.  All  heirs. — When  necessary  parties. 

7.  Substitution  of  representative  for  heirs  as  parties. 

8.  Foreign  state. — Action  maintained  in. 

9,  10.  Manner  of  pleading  negligence. — Specific  and  general  allegations. 

11.  Damages. — Elements   of. 

12.  "Sorrow,  grief,   and  mental  suffering." 

13.  "Society,   comfort,"   etc. 

14.  Loss  of  services  of  child. 

15.  Pecuniary  loss  as  measure  of  damages. 

16.  Pecuniary  damages. 

17.  Measure  of  compensation  to  minors  for  death  of  parent. 

18.  Statutory  limitation   upon   damages. 

19.  Passenger  in  automobile. — Death   resulting  from  negligence. 

20.  Defenses. — Contributory  negligence  of  parent. 
21,  22.  Unskilful  treatment  of  patient. 

23.  Defenses  of  assumption  of  risk  and  contributory  negligence  of  deceased. 

24.  Negligence  and  contributory  negligence. — Questions  of  fact. 

1.  Time      In      which      suit      must      be  v.    Kansas    City    etc.    R.    Co.,    219    Mo. 

brought. — Actions    for     wrongful     death  524,  118  S.  W.  40,  45,  and  cases  cited, 
are     statutory,     and     the     persons     who  2.  Statutory     requirements     must     ap- 

alone    may    sue    must    sue    within    the  pear   In    the    petition. — In    statutory   ac- 

time  prescribed   by   the   statute:     Clark  tions,  sueh  as  that  for  wrongful  death, 


€h.  CIX.] 


ANNOTATIONS. 


1503 


the  party  suing  must  bring  himself 
strictly  within  the  statutory  require- 
ments necessary  to  confer  the  right,  and 
this  must  appear  in  the  petition;  other- 
wise, it  shows  no  cause  of  action:  Bar- 
ker v.  Railroad,  91  Mo.  94,  14  S.  W. 
282;  Clark  v.  Kansas  City  etc.  R.  Co., 
219  Mo.   524,   118  S.  W.   40,   45. 

3.  Existence  of  beneficiaries  desig- 
nated by  the  statute  must  be  alleged.— 
Where  the  statute  gives  a  right  of 
action  in  favor  of  a  designated  class  of 
beneficiaries  in  existence,  the  failure  to 
aver  in  the  declaration  or  complaint  the 
existence  of  any  of  such  latter  class  is 
fatal  on  demurrer:  Bartlett  v.  Chicago 
etc.  R.  Co.,  21  Okla.  415,  96  Pac.  468, 
470,  quoting  the  rule  as  stated  in  13 
Cyc.  342. 

4.  Action  under  Arizona  statute. — 
Action  for  damages  resulting  from  death 
caused  by  the  tort  of  another,  under 
paragraph  2765  of  the  Revised  Statutes 
of  Arizona  of  1901,  is  for  the  benefit 
of  the  estate  of  the  decedent:  Southern 
Pacific  Co.  v.  Wilson,  10  Ariz.  162,  85 
Pac.    401,    403. 

Under  the  statute  of  Arizona  (Rev. 
Stats.  1902,  H  2765),  creating  a  right  of 
action  for  damages  resultant  from  deatli 
caused  by  the  tort  of  another,  and  pro- 
viding: "Every  such  action  shall  be 
brought  by  and  in  the  name  of  the  per- 
sonal representative  of  such  deceased 
person;  and,  providing,  that  the  father, 
*  *  *  may  maintain  the  action  for 
the  death  of  a  child;  *  *  *  and  the 
amount  recovered  in  such  action  shall 
be  distributed  to  the  parties  and  in 
the  proportions  provided  by  law  in  re- 
lation to  the  distribution  of  personal 
estates  left  by  persons  dying  intestate"; 
held,  that  a  complaint  is  sufficient  which 
contains  allegations  "that  plaintiff  and 
his  wife  are  father  and  mother  of  the 
deceased;  that  plaintiff,  on  [a  day 
stated],  was  the  defendant's  tenant  of 
the  premises  in  question,  then  owned 
by  defendant;  that  the  defendant 
wrongfully  and  negligently  kept  and 
maintained,  and  suffered  to  remain, 
upon  the  premises  a  certain  adobe  wall, 
exposed  and  in  a  dangerous  condition; 
that  defendant  knowingly  maintained 
said  adobe  wall  with  utter  disregard 
to  persons  living  and  to  business  in 
and  upon  said  premises,  and  knowingly 
and  wilfully  suffered  said  wall  to  re- 
main in  said  dangerous  condition  after 
being   notified  of   the   said   condition   of 


the  said  adobe  wall;  that  without  fault 
or  negligence  of  the  decedent  or  plaint- 
iff the  said  wall  fell  on  and  instantly 
killed  the  decedent;  that  by  reason  of 
the  premises,  and  by  virtue  of  para- 
graph 2764  of  the  Revised  Statutes,  a 
cause  of  action  has  arisen  in  favor  of 
plaintiff  against  defendant  for  damages 
for  the  death  of  said  child;  that  said 
damages  are  $4,800,"  etc.  In  this  com- 
plaint the  court  held  that  every  essen- 
tial fact  was  disclosed.  The  complaint 
should,  however,  contain  an  allegation 
whether  the  plaintiff  seeks  to  sue  in  a 
representative  capacity,  or  whether  he 
is  attempting  to  sue  in  a  personal 
capacity.  The  complaint  above  was  in- 
definite in  this  respect;  but  inasmuch 
as  the  defendant  failed  to  make  any 
objection  by  special  demurrer  or  by  mo- 
tion to  make  more  definite  and  certain, 
the  court  held  that  such  indefiniteness 
could  not  be  cured  on  appeal,  and  that, 
in  the  main,  the  complaint  sufficiently 
disclosed  a  right  of  action  in  the  plaint- 
iff in  this  representative  capacity:  De 
Amado  v.  Freidman  (Ariz.),  89  Pac.  588, 
5S9  (for  wrongful  death  of  child — negli- 
gence in  maintaining  dangerous  wall). 

5.  Existence  of  beneficiaries.  —  When 
not  required  to  allege. — In  such  actions 
it  is  not  incumbent  upon  the  plaintiff 
to  allege  or  prove  the  existence  of  bene- 
ficiaries, or  the  amount  of  damages  suf- 
fered by  them.  Damages  are  deemed 
to  have  been  caused  to  the  estate  by 
reason  of  the  death,  and  are  to  be  dis- 
tributed as  by  law  to  those  who  are 
entitled  by  law  to  such  estate:  Southern 
Pacific  Co.  v.  Wilson,  10  Ariz.  162,  85 
Pac.  401,  402  (for  damages  for  wrongful 
death  of  adult  person — negligence  re- 
sulting in  railroad  collision). 

6.  All  heirs. — When  necessary  parties. 
— Under  the  California  statute,  an  ac- 
tion for  wrongful  death  may  be  brought 
either  by  the  representative  or  all  the 
heirs.  If  an  action  is  brought  by  heirs, 
all  must  be  joined  therein,  either  as 
plaintiffs  or  defendants:  Salmon  v. 
Rathjens,   152  Cal.   290,   294,   92   Pac.   733. 

7.  Substitution  of  representative  for 
heirs  as  parties. — In  an  action  for 
wrongful  death,  the  personal  represent- 
ative may  be  substituted  in  place  of 
the  wloow  and.  cnnareiv,  &.n&  su::k  pro- 
stitution is  not  in  violation  of  the  gen« 
erai  rule  forbidding  a  substitution  ot 
parties  which  operates  to  change  the 
original    cause    of    action:      Pugmire    v. 


1504 


DEATH  BY  WRONGFUL  ACT. 


[Tit.  XIII. 


Diamond  Coal  etc.  Co.,  26  Utah,  115,  72 
Pac.  385;  Sargent  v.  Union  Fuel  Co. 
(Utah),   108  Pac.  928,   929. 

8.  Foreign  state. — Action  maintained 
In. — An  action  for  death  by  wrongful  act 
under  a  statute  giving  the  right  may  be 
maintained  in  another  state  having  a 
statute  substantially  similar  in  import 
and  character:  St.  Louis  etc.  R.  Co.  v. 
Haist,  71  Ark.  258,  72  S.  W.  893,  100  Am. 
St.  Rep.  65;  St.  Louis  etc.  R.  Co.  v. 
McNamare,  91  Ark.  515,  122  S.  W.  102, 
105.  See  cases  cited  in  note  to  Raisor  v. 
Chicago  etc.  R.  Co.,  2  Am.  &  Eng.  Ann. 
Cas.    806. 

9.  Manner  of  pleading  negligence. — 
Specific  and  general  allegations. — A  pe- 
tition in  which  the  following  specific 
allegations  are  found  was  held  not  en- 
titled to  be  treated  as  a  petition  charg- 
ing general  negligence;  and  held,  fur- 
ther, that  the  same  were  intended  as  a 
specific  summary  of  the  more  general 
allegations  which  preceded  them,  al- 
though this  did  not  convert  the  pleading 
from  one  specifically  alleging  negligence 
to  one  alleging  negligence  only  gener- 
ally. The  following  are  the  allegations 
referred  to:  "That  the  death  of  plaint- 
iff's said  husband,  George  W.  Evans, 
was  caused  by  the  carelessness  and 
negligence  of  defendant's  engineer  run- 
ning said  passenger  engine,  in  failing 
and  neglecting  to  keep  a  proper  lookout 
in  front  of  his  engine,  and  in  failing  and 
neglecting  to  observe  the  said  freight 
engine  and  train  standing  on  said  track, 
and  by  the  carelessness  and  negligence 
of  the  engineer  and  train  crew  of  said 
freight  train  aforesaid,  in  failing  and 
neglecting  to  give  the  proper  signals  to 
the  engineer  of  said  passenger  engine 
in  time  to  avoid  said  collision,  thereby 
causing  said  collision  and  killing  plaint- 
iff's said  husband  as  aforesaid":  Evans 
v.  Wabash  R.  Co.,  222  Mo.  435,  121  S. 
W.   36,   41. 

10.  As  to  the  manner  of  pleading  neg- 
ligence in  actions  to  recover  for  wrong- 
ful death,  see  Chicago  etc.  R.  Co.  v. 
Smith   (Ark.),  127  S.  W.  715,  717. 

11.  DAMAGES.  —  Elements  of .  —  Ele- 
ments of  damages  proper  to  be  consid- 
ered by  jury  for  which  damages  may  be 
awarded  to  parents  in  actions  for 
wrongful  death  are:  (1)  loss  of  child's 
services  during  minority;  (2)  mental 
anguish  and  suffering  of  parents;  (3) 
expenses  for  medical  attendance;  and 
(4)  funeral  expenses:    Karr  v.  Parks,  44 


Cal.  46;  Sykes  v.  Lawlor,  49  Cal.  236; 
Cleary  v.  City  R.  Co.,  76  Cal.  240,  18 
Pac.  269.  (But  see  cases  cited  In  para- 
graphs 12  and  14,  post.) 

12.  "Sorrow,  grief,  and  mental  suffer- 
ing."— Mental  distress  of  parent  conse- 
quent upon  death  of  child  is  not  an  ele- 
ment of  damages:  Morgan  v.  Southern 
Pacific  R.  Co.,  95  Cal.  510,  30  Pac.  601, 
603,  17  L.  R.  A.  71,  29  Am.  St.  Rep.  143. 
"Sorrow,  grief,  and  mental  suffering" 
are  circumstances  too  remote  to  be 
taken  into  consideration  by  a  jury  in 
assessing  damages:  Munro  v.  Pacific 
Coast  D.  &  R.  Co.,  84  Cal.  515,  525,  24 
Pac.  303,  18  Am.  St.  Rep.  248.  See  State 
v.  Baltimore  etc.  R.  Co.,  24  Md.  84,  87 
Am.  Dec.   600. 

13.  "Society,  comfort,"  etc. — In  esti- 
mating the  pecuniary  loss  the  jury  may 
be  instructed  that  they  have  a  right  to 
take  into  consideration  the  loss  of  soci- 
ety, comfort,  and  care  suffered  by  the 
heirs  in  the  death  of  a  husband  and 
father;  but  compensation  for  loss  of 
society,  comfort,  and  care  can  not  be 
made  a  separate  and  distinct  element 
of  damage:  Dyas  v.  Southern  Pacific 
Co.,  140  Cal.  296,  73  Pac.  972.  See  Munro 
v.  Pacific  Coast  D.  &  R.  Co.,  84  Cal.  515, 
24  Pac.  303,  18  Am.  St.  Rep.  248;  Louis- 
ville etc.  R.  Co.  v.  Goodykoontz,  119  Ind. 
Ill,  21  N.  E.  472,  12  Am.  St.  Rep.  371, 
and  note  12  Am.  St.  Rep.  375-383;  Hale 
v.  San  Bernardino  etc.  Co.,  156  Cal.  713, 
716,  106  Pac.  83,  and  cases  cited. 

14.  Loss  of  services  of  child. — In  such 
a  case  the  main  element  of  damages  is 
the  loss  of  the  child's  services;  and  de- 
termination of  such  damages  is  left  by 
the  legislature  to  the  discretion  of  the 
jury:  Cleary  v.  City  R.  Co.,  76  Cal.  240, 
18  Pac.  269;  Morgan  V.  Southern  Pacific 
R.  Co.,  95  Cal.  510,  30  Pac.  601,  29  Am. 
St.  Rep.  143,   17  L.  R.  A.  71. 

15.  Pecuniary  loss  as  measure  of  dam- 
ages.— In  an  action  under  a  statute  for 
negligence  in  wrongfully  causing  death, 
the  damages  must  be  confined  to  the 
pecuniary  loss  suffered  by  kindred  and 
loss  of  comfort,  society,  support,  and 
protection  of  the  deceased:  Munro  v. 
Pacific  Coast  D.  &  R.  Co.,  84  Cal.  515, 
527,  24  Pac.  303,   18  Am.  St.  Rep.   248. 

16.  Pecuniary  damages  are  limited  to 
probable  value  of  life  of  deceased  to  rel- 
atives: Morgan  v.  Southern  Pacific  R. 
Co.,  95  Cal.  510,  30  Pac.  601,  603,  29  Am. 
St.  Rep.  143,  17  L.  R.  A.  71;  Pepper  v. 
Southern    Pacific    Co.,    105,    Cal.    389,    3& 


<Jh.  C1X.] 


ANNOTATIONS. 


150-3 


Pac.  974;  Lange  v.  Schoettler,  115  Cal. 
388,  392.  47  Pac.  139;  Ruppel  v.  United 
R.  of  San  Francisco,  1  Cal.  App.  666,  82 
Pac.  1073. 

17.  Measure  of  compensation  to  mi- 
nors for  death  of  parent. — Children  have 
the  right  to  receive  from  their  father 
comfortable  support  and  reasonably  good 
education  until  they  shall  arrive  at  suffi- 
cient age  to  maintain  themselves;  and 
where  the  father,  whilst  able  to  per- 
form this  duty  towards  his  children, 
loses  his  life  through  negligence  of  an- 
other, it  was  the  intention  of  the  statute 
to  compel  the  offending  party  to  make 
fair  and  just  compensation  for  the  in- 
jury. To  accomplish  that  end  would  re- 
quire a  larger  sum  for  a  numerous 
family  than  if  it  consisted  of  but  one 
or  two  persons.  In  like  manner,  if  there 
be  a  surviving  widow,  who,  if  her  hus- 
band had  lived,  would  have  been  enti- 
tled to  support  from  him  appropriate  to 
his  circumstances  and  condition  in  life, 
she  would  be  entitled  to  be  fairly  and 
Justly  compensated  for  loss  in  this  re- 
spect which  she  suffered  by  his  death: 
Taylor  v.  Western  Pacific  R.  Co.,  45  Cal. 
323,   329,    336. 

18.  Statutory  limitation  upon  damages. 
— Under  a  statute  limiting  the  amount 
of  damages  in  an  action  for  wrongful 
death,  it  is  held  that  damages  in  such 
an  action,  the  same  being  purely  statu- 
tory, must  be  limited  to  the  amount  re- 
coverable under  the  statute  as  the  same 
existed  at  the  time  the  accident  hap- 
pened. Where  the  legislature  after- 
ward increased  the  measure  of  damages 
recoverable  in  such  actions,  and  this  in- 
crease was  in  operation  at  the  time  of 
the  trial,  it  is  held  that  the  effect  was 
to  create  a  new  cause  of  action  for  the 
amount  of  the  increase,  and  in  this 
create  a  new  right,  and  did  not  merely 
change  the  remedy:  Keeley  v.  Great 
Northern  R.  Co.,  139  Wis.  448,  121  N.  W. 
167,    170. 

19.  Passenger  in  automobile. — Death 
resulting  from  negligence. — A  complaint 
in  an  action  by  a  wife  to  recover  dam- 
ages for  personal  injuries  received  by 
her  husband,  and  which  resulted  in  his 
death  while  a  passenger  in  an  automo- 
bile run  for  hire,  has  been  held  suffi- 
cient, and  judgment  affirmed  thereon, 
where  such  complaint,  in  substance, 
charges:  That  on  the  14th  day  of  Sep- 
tember, 1907,  the  plaintiff's  husband  be- 
came a  passenger  in  an  automobile  run 


for  hire;  that  he  was  being  conveyed 
therein  from  the  city  of  Seattle  to  a 
point  known  as  "The  Meadows,"  some 
distance  south  of  the  city;  that  a  car  of 
the  defendant,  operated  by  electricity, 
through  the  negligence  of  the  defend- 
ant's servants,  ran  into  the  automobile, 
overthrowing  the  same,  and  throwing 
the  husband  of  the  respondent  out  of  the 
automobile  and  upon  the  planking  In  the 
highway  at  the  place  of  contact  with 
such  force  and  violence  as  to  produce 
injuries  from  which  he  died  on  the  27th 
day  of  October  following,  etc.:  Wilson 
v.  Puget  Sound  Electric  Car  Co.,  52 
Wash  522,  101  Pac.  50,  51,  132  Am.  St. 
Rep.    1044. 

20.  DEFENSES.  —  Contributory  negli- 
gence of  parent.- — In  an  action  for  the 
alleged  wrongful  death  of  an  infant,  the 
contributory  negligence  of  the  parent 
suing  may  be  invoked  against  such  par- 
ent, and  is  always  available  as  a  de- 
fense where  such  contributory  negli- 
gence of  the  defendant  exists:  Palmer 
v.  Oregon  S.  L.  Co.,  34  Utah  466,  98  Pac. 
689,    697. 

21.  Unskilful  treatment  of  patient. — 
The  fact  that  a  person  injured  is  un- 
skilfully treated,  and  that  this  contrib- 
uted to  his  death,  is  no  defense  to  an 
action  for  damages  for  causing  his 
death:  Nagel  v.  Missouri  etc.  R.  Co.,  75 
Mo.  653,  42  Am.  Rep.  41S;  Murphy  v. 
Southern  Pacific  Co.,  31  Nev.  120,  101 
Pac.   322,    329. 

22.  Defendant's  liability  in  an  action 
for  causing  death  by  negligence  does 
not  cease  because  the  injured  person  did 
not  adopt  the  best  remedies  or  follow 
implicitly  the  directions  of  his  physi- 
cian: Texas  etc.  R.  Co.  v.  Orr,  46  Ark. 
182;  Murphy  v.  Southern  Pacific  Co.,  31 
Nev.    120,    101    Pac.   322,    329. 

23.  Defenses  of  assumption  of  risk  and 
contributory  negligence  of  deceased. — In 
action  by  representatives  to  recover  for 
death  of  deceased,  and  for  alleged  negli- 
gence of  defendant,  a  judgment  for  the 
defendant  was  affirmed  on  the  affirma- 
tive defenses,  in  substance,  as  follows: 
That  said  William  Hollingsworth,  Sr., 
[alleged  in  the  complaint  to  have  been 
killed  by  falling  down  an  abandoned 
shaft  on  the  property  of  the  defendant,] 
had  full  knowledge  of  the  condition  of 
the  shaft  and  of  its  dangerous  charac- 
ter; that  defendant  had,  prior  to  the  3d 
day  of  October,  1906,  [the  date  of  the 
death   of    the   said   Hollingsworth,]    used 


1506 


NEGLIGENCE  AT  CROSSINGS,  ETC. 


[Tit.  XIII. 


reasonable  care  In  the  repair  of  the 
shaft,  and  had  placed  it  in  a  reasonably 
safe  condition;  that  defendant  had  no 
notice  or  knowledge  that  the  shaft  had 
become  out  of  repair  or  dangerous,  until 
the  4th  day  of  October,  1906;  that  if  the 
shaft  became  dangerous  or  defective  on 
the  evening  of  the  3d  day  of  October, 
1906,  the  same  was  unknown  to  defend- 
ant; that  said  Hollingsworth  had  full 
knowledge  of  the  condition  of  the  shaft, 
and  of  the  fact  that  it  had  become  dan- 
gerous on  the  evening  of  October  3,  1906, 
and  prior  to  the  alleged  accident,  and 
told  various  men  working  with  him  for 
defendant  of  its  condition,  and  advised 
them  to  notify  defendant  thereof  imme- 
diately on  the  morning  of  October  4, 
1906,  and  that,  with  full  knowledge  of 
the  dangerous  condition  of  the  shaft, 
said  Hollingsworth  voluntarily  contin- 
ued his  work  as  engineer  without  any 
objection,  and  thereby  assumed  all  risk; 
that  it  was  not  necessary  for  Hollings- 
worth to  approach  the  shaft  in  the  per- 


formance of  his  duties  as  engineer;  that. 
If  he  approached  said  shaft,  it  was  upon 
his  own  suggestion  and  for  his  own  in- 
dividual purposes,  with  full  knowledge 
of  its  dangerous  condition,  and  without 
any  instruction  from  defendant  or  neces- 
sity of  the  performance  of  his  duties; 
that  said  Hollingsworth  was  killed  be- 
cause of  his  own  contributory  negli- 
gence: Hollingsworth  v.  Davis-Daly  E- 
C.  Co.,  38  Mont.  143,  99  Pac.  142. 

24.  Negligence  and  contributory  negli- 
gence.— Questions  of  fact. — In  general, 
all  the  questions  as  to  the  negligence  of 
the  defendant  or  the  contributory  negli- 
gence of  the  plaintiff  are  for  the  jury  to 
determine.  It  is  only  when  the  charac- 
ter of  the  negligence  is  affirmatively 
conclusive  and  leads  to  an  irresistible 
inference  that  the  court  will  determine 
its  character  and  effect.  See  Schneider 
v.  Market  Street  R.  Co.,  134  Cal.  482. 
487,  66  Pac.  734,  (by  parent  for  damages 
resulting  in  the  death  of  son — negligence 
of  street  railway  company  at  crossing) . 


CHAPTER   CX. 

Negligence  of  Carriers. — Actions  by  Persons  other  than  Passengers. 

Page 

§  381.  Code  provisions 150T 

§  382.  Complaints  [or  petitions]    1521 

Form  No.  909.  For  damages  for  negligence  of  street  railway 

company  at  street-crossing  1521 

Form  No.  910.  For  damages  for  negligence  of  steam  railroad 

company  at  crossing  1522 

Form  No.  911.  By   pedestrian,   for   damages   for   personal   in- 
juries caused  by  the  negligence  of  a  railroad 

company 1524 

Form  No.  912.  Averment    of    petition    for    injuries    to    stock 
caused   by   neglect  of  railroad   company   to 
fence  its  road,  as  required  by  general  statute     1525 
Form  No.  913.  Against  railroad  company,  for  damages  for  the 

wanton  killing  of  stock 1525 

S  383.  Answers 1526 

Form  No.  914.  Defense   based   upon   duty   of  the   plaintiff   to 

make  [or  maintain]  cattle-fences 1526 

Form  No.  915.  Defense    based    upon    trespass    by    animals. — 
Action  for  injuries  to  stock,  alleged  to  have 

been  killed  while  on  defendant's  tiack 1527 

§  384.  Annotations 1528 


Ch.  CX.]  CODE  PROVISIONS.  ]507 

§381.     CODE   PROVISIONS. 

Regulations  to  prevent  accidents. 

California,  §  486.  A  bell,  of  at  least  twenty  pounds  weight,  must 
be  placed  on  each  locomotive  engine,  and  be  run  at  a  distance  of 
at  least  eighty  rods  from  the  place  where  the  railroad  crosses  any 
street,  road,  or  highway,  and  be  kept  ringing  until  it  has  crossed 
such  street,  road,  or  highway;  or  a  steam  whistle  must  be  attached, 
and  be  sounded,  except  in  cities,  at  the  like  distance,  and  be  kept 
sounding  at  intervals  until  it  has  crossed  the  same,  under  a  penalty 
of  one  hundred  dollars  for  every  neglect,  to  be  paid  by  the  corpora- 
tion operating  the  railroad,  which  may  be  recovered  in  an  action 
prosecuted  by  the  district  attorney  of  the  proper  county,  for  the 
use  of  the  state. 

[Liability  in  damages.]  The  corporation  is  also  liable  for  all 
damages  sustained  by  any  person,  and  caused  by  its  locomotives, 
train,  or  cars,  when  the  provisions  of  this  section  are  not  complied 
with.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing'.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arizona,  Rev.  Stats.  1901,  fl  869.  b  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
§  6595.  Idaho,  Rev.  Codes  1909,  §  2821.  c  Iowa,  Ann.  Code  1897,  §  2072.  a  Kan 
sas,  Gen.  Stats.  1905  (Dassler),  §1389.  e  Minnesota,  Rev.  Laws  1905,  §5001 
f  Missouri,  Ann.  Stats.  1906,  §1102.  s  Nebraska,  Comp.  Stats.  Ann.  1909 
§  2047;  Ann.  Stats.  (Cobbey),  §  10579.  h  Nevada,  Comp.  Laws  Ann.  1900  (Cut 
ting),  §1012.  i  New  Mexico,  Comp.  Laws  1897,  §3859.  i  North  Dakota,  Rev 
Codes  1905,  §4295.  k  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §  1057; 
Comp.  Laws  1909  (Snyder),  §1387.  i  South  Dakota,  Rev.  Codes  1903,  C.  C 
§538.  m  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  4507.  n  Utah,  Comp.  Laws 
1907,  §  447.    o  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §  1809. 

a  Arizona,    fl  869.      Every   railroad    cor-  by  reason  of  a  non-compliance  with  the 

poration    shall    cause   a   bell   of   at   least  provisions  of  this  section, 

twenty  pounds  weight  to  be  attached  to  b  Arkansas,    §  6595.     A  bell   of  at  least 

each    of     their     locomotives,     and    shall  thirty  pounds  weight,  or  a  steam  whis- 

cause  the  same  to  be  rung  at  a  distance  tie,    shall   be  placed  on   each   locomotive 

of   not   less    than    eighty    rods    from    the  or  engine,  and  shall  be  rung  or  whistled 

crossing    of    any    public    street,    road    or  at   the   distance  of  at   least  eighty   rods 

highway,  under  a  penalty  of  one  hundred  from    the    place    where    the    said    road 

dollars,  to  be  recovered  by  action  in  the  shall  cross  any  other  road  or  street,  and 

name   of    the    territory    in    any   court   of  be    kept    ringing    or    whistling    until    it 

competent  jurisdiction,  one-half  of  which  shall    have   crossed   said   road   or   street, 

shall  go  to  the  informer  and  the  other  under  a  penalty  of  two  hundred  dollars 

half  to  the  territory;   and  said  corpora-  for    every    neglect,    to    be    paid    by    tha 

tion  shall  also  be  liable  for  all  damages  corporation    owning    the    railroad,    one- 

which  may  be  sustained  by  any  person  half   thereof   to  go   to   the   informer   and 


1508 


NEGLIGENCE  AT  CROSSINGS,  ETC. 


[Tit.  XIII. 


the  other  half  to  the  county;  and  the 
corporation  shall  also  be  liable  for  all 
damages  which  shall  be  sustained  by 
any  person  by  reason  of  such  neglect. 

c  Iowa,  §  2072.  A  bell  and  a  steam 
whistle  shall  be  placed  on  each  locomo- 
tive engine  operated  on  any  railway, 
which  whistle  shall  be  twice  sharply 
sounded  at  least  sixty  rods  before  a 
road  crossing  is  reached,  and  after  the 
sounding  of  the  whistle  the  bell  shall  be 
rung  continuously  until  the  crossing  is 
passed;  but  at  street  crossings  within 
the  limits  of  cities  or  towns  the  sound- 
ing of  the  whistle  may  be  omitted,  un- 
less required  by  ordinance  or  resolution 
of  the  council  thereof;  and  the  com- 
pany shall  be  liable  for  all  damages 
which  shall  be  sustained  by  any  person 
by  reason  of  such  neglect.  Any  officer 
or  employee  of  any  railway  company 
violating  any  of  the  provisions  of  this 
section  shall  be  punished  by  fine  not  ex- 
ceeding one  hundred  dollars  for  each  of- 
fense. 

d  Kansas,  §  13S9.  A  steam  whistle  shall 
be  attached  to  each  locomotive  engine, 
and  be  sounded  three  times  at  least, 
eighty  rods  from  the  place  where  the  rail- 
road shall  cross  any  public  road  or  street, 
except  in  cities  and  villages,  under  a 
penalty  of  not  more  than  twenty  dollars 
for  every  neglect  of  the  provisions  of 
this  section,  to  be  paid  by  the  corpora- 
tion owning  the  railway  on  the  suit  of 
the  county  attorney,  one-half  thereof  to 
go  to  the  informer,  and  the  other  half 
to  the  county  for  the  support  of  com- 
mon schools;  and  the  corporation  shall 
also  be  liable  for  all  damages  which  shall 
be  sustained  by  any  person  by  reason 
of  such  neglect:  Provided,  however, 
that  such  penalty  shall  be  sued  for 
within  one  month  from  the  time  the 
cause  of  action  accrues,  and  not  there- 
after: And  provided  further,  but  that 
one  penalty  shall  be  recovered  in  any 
one  action. 

e  Minnesota,  I  5001.  Every  engineer, 
driving  a  locomotive  on  any  railway,  who 
shall  fail  to  ring  the  bell  or  sound  the 
whistle  upon  such  locomotive,  or  cause 
the  same  to  be  rung  or  sounded,  at  least 
eighty  rods  from  any  place  where  such 
railway  crosses  a  traveled  road  or  street, 
on  the  same  level  (except  in  cities),  or 
to  continue  the  ringing  of  such  bell  or 
sounding  of  such  whistle  at  intervals  un- 
til such  locomotive  and  the  train  thereto 
attached   shall   hare   completely   crossed 


such  road  or  street,  shall  be  guilty  of  a 
misdemeanor. 

f  Missouri,      §  1102.     A     bell     shall     be 
placed  on  each  locomotive  engine,  and  be 
rung    at    a    distance    of    at   least    eighty 
rods  from   the   place  where  the  railroad 
shall   cross   any   traveled   public   road   or 
street,  and  be  kept  ringing  until  it  shall 
have   crossed   such   road  or   street,    or   a 
steam  whistle  shall  be  attached  to  such 
engine   and   be   sounded   at   least   eighty 
rods   from   the  place   where   the   railroad 
shall  cross  any  such  road  or  street,   ex- 
cept in  cities,  and  be  sounded  at  inter- 
vals until  it  shall  have  crossed  such  road, 
or  street,  under  a  penalty  of  twenty  dol- 
lars for  every  neglect  of  the  provisions 
of  this  section,  to  be  paid  by  the  corpo- 
ration owning  the  railroad,  to  be  sued  for 
by  the  prosecuting  or  circuit  attorney  of 
the  proper  circuit,  within  ten  days  after 
such     penalty     was     incurred,     one-half  ' 
thereof   to  go   to   the   informer,    and   the 
other  half  to  the  county;   and  said  cor- 
poration shall  also  be  liable  for  all  dam- 
ages   which    any    person    may    hereafter 
sustain  at  such  crossing  when  such  bell 
shall  not  be  rung  or  such  whistle  sounded 
as    required    by    this    section:    Provided, 
however,    that  nothing   herein   contained 
shall  preclude  the  corporation  sued  from 
showing  that  the  failure  to  ring  such  bell 
or  sound  such  whistle  was  not  the  cause 
of  such  injury. 

g  Nebraska,  §  2047.  A  bell  of  at  least 
thirty  pounds  weight  or  a  steam  whistle 
shall  be  placed  on  each  locomotive  en- 
gine, and  shall  be  rung  or  whistled  at 
the  distance  of  at  least  eighty  rods  from 
the  place  where  the  said  railroad  shall 
cross  any  other  road  or  street,  and  be 
kept  ringing  or  whistling  until  it  shall 
have  crossed  said  road  or  street,  under 
a  penalty  of  fifty  dollars  for  every  neg- 
lect, to  be  paid  by  the  corporation  own- 
ing the  railroad,  one-half  thereof  to  go  to 
the  informer,  and  the  other  half  to  this 
state,  and  also  be  liable  for  all  damages 
which  shall  be  sustained  by  any  person 
by  reason  of  such  neglect.  Provided, 
that  this  section  shall  not  apply  to  cars 
or  trains  operated  by  electricity  and  that 
such  electric  cars  and  trains  shall  be 
equipped  with  air  whistles  which  shall 
be   whistled  as   herein   provided. 

h  Nevada,  §  1012,  substantially  same  as 
Arizona  fl  869. 

i  New  Mexico,  §  3859,  substantially 
same  as  Arizona  fl  869. 


Ch.  CX.] 


CODE  PROVISIONS. 


1509 


J  North  Dakota,  §  4295,  substantially 
same  as  Arkansas  §  6595,  except  in  line 
10,  after  "penalty  of"  change  "two  hun- 
dred" to  "fifty"  before  "dollars";  also  in 
fourth  line  from  the  end  change  "coun- 
ty" to  "state." 

k  Oklahoma,  §  1057,  substantially  same 
as  North  Dakota  §  4295,  except  in  line  3 
the  word  "eighty"  before  "rods"  is 
changed   to   "eight,"    aparently   in   error. 

I  South  Dakota,  Civ.  Code,  §  538,  sub- 
stantially same  as  North  Dakota,   §  4295. 

m  Texas,  Art.  4507.  A  bell  of  at  least 
thirty  pounds  weight  and  a  steam  whistle 
shull  be  placed  on  each  locomotive  en- 
gine, and  the  whistle  shall  be  blown  and 
the  bell  rung  at  the  distance  of  at  least 
eighty  rods  from  the  place  where  the 
railroad  shall  cross  any  public  road  or 
street,  and  such  bell  shall  be  kept  ring- 
ing until  it  shall  have  crossed  such  pub- 
lic road,  or  stopped;  and  each  locomotive 
engine  approaching  a  place  where  two 
lines  of  railway  cross  each  other,  shall, 
before  reaching  such  railway  crossing,  be 
brought  to  a  full  stop;  and  any  engineer 
having  charge  of  such  engine,  and  neg- 
lecting to  comply  with  any  of  the  pro- 
visions of  this  article,  shall  be  fined  in 
any  sum  not  less  than  five  nor  more  than 
one  hundred  dollars  for  such  neglect, 
and  the  corporation  operating  such  rail- 
way shall  be  liable  for  all  damages  which 
shall  be  sustained  by  any  person  by  rea- 
son of  any  such  neglect;  provided,  how- 
ever, that  the  full  stop  at  such  crossings 
may  be  discontinued  when  the  railroads 
crossing  each  other  shall  put  into  full 
operation  at  such  crossing  an  interlock- 
ing switch  and  signal  apparatus,  and 
shall  keep  a  flagman  in  attendance  at 
such  crossing. 

q  Utah,  §  447.  Every  locomotive  shall 
be  provided  with  a  bell  weighing  not  less 
than  twenty  pounds,  which  shall  be  rung 
continuously  from  a  point  not  less  than 
eighty  rods  from  any  street,  road,  or 
highway  crossing,  until  such  street,  road, 
or  highway  shall  be  crossed,  but  the 
sounding  of  the  locomotive  whistle  at 
least  one-fourth  of  a  mile  before  reach- 
ing any  such  crossing  shall  be  deemed 
equivalent   to   ringing  the   bell  as  afore- 


said, except  in  towns  and  at  terminal 
points;  during  the  prevalence  of  fogs, 
snow,  and  dust  storms,  the  locomotive 
whistle  shall  be  sounded  before  each 
street  crossing  while  passing  through 
cities  and  towns.  All  locomotives  with 
or  without  trains,  before  crossing  the 
main  track  at  grade  of  any  other  rail- 
road, must  come  to  a  full  stop  at  a  dis- 
tance not  exceeding  400  feet  from  the 
crossing,  and  must  not  proceed  until  the 
way  is  known  to  be  clear;  two  blasts  of 
the  whistle  shall  be  sounded  at  the  mo- 
ment of  starting;  provided,  that  when- 
ever interlocking  signal  apparatus  ana 
derailing  switches  are  adopted  such  stop 
shall  not  be  required.  Every  person  in 
charge  of  a  locomotive,  for  any  neglect 
to  observe  the  provisions  of  this  sec- 
tion shall  be  deemed  guilty  of  a  misde- 
meanor, and  the  corporation  shall  be  lia- 
ble for  all  damages  which  any  person 
may  sustain  by  reason  of  such  neglect, 
o  Wisconsin,   §  1S09.     *     *     * 

3.  No  such  railroad  company  or  cor- 
poration shall  run  any  train  or  locomo- 
tive over  any  public  traveled  grade  cross- 
ing within  any  incorporated  city  or  vil- 
lage, except  wherein  gates  are  erected, 
maintained  and  operated,  or  a  flagman  is 
stationed,  unless  the  engine  bell  shall  be 
rung  continuously  within  twenty  rods  of 
and  until  such  crossing  shall  be  reached 
by  such  train  or  locomotive.  Provided, 
that  flagmen  or  gates  shall  be  placed 
and  maintained,  or  such  mechanical 
safety  appliances  shall  be  installed  upon 
such  street  crossings  in  incorporated  vil- 
lages and  cities  over  which  trains  pass 
as  the  public  authorities  of  any  such  city 
or  village  may  direct. 

4.  No  such  railroad  company  or  cor- 
poration shall  run  any  train  or  locomo- 
tive over  any  public  traveled  grade  high- 
way crossing,  outside  of  the  limits  of 
any  incorporated  city  or  village,  unless 
the  whistle  shall  be  blown  eighty  rods 
from  such  crossing  and  the  engine  bell 
rung  continuously  from  thence  until  sucb 
crossing  be  reached  by  such  train  or  lo- 
comotive. •  *  *  *  •  (Amended  July 
12,  1907,  Laws  of  1907,  p.  491.) 


Liability  for  killing  stock,  etc. 

California,  §  485.    Railroad  corporations  must  make  and  maintain 
^  good  and  sufficient  fence  on  either  or  both  sides  of  their  track 


Jury's  PI. — 96. 


1510  NEGLIGENCE  AT  CROSSINGS,  ETC.  [Tit.  XIII. 

and  property.  In  case  they  do  not  make  and  maintain  such  fence, 
if  their  engine  or  cars  shall  kill  or  maim  any  cattle  or  other  domes- 
tic animals  upon  their  line  of  road  which  passes  through  or  along 
the  property  of  the  owner  thereof,  they  must  pay  to  the  owner  of 
such  cattle  or  other  domestic  animals  a  fair  market  price  for  the 
same,  unless  it  occurred  through  the  neglect  or  fault  of  the  owner 
of  the  animal  so  killed  or  maimed. 

[When  not  liable  in  damages  for  killing  stock.]  Kailroad  cor- 
porations paying  to  the  owner  of  the  land  through  or  along  which 
their  road  is  located  an  agreed  price  for  making  and  maintaining 
such  fence,  or  paying  the  cost  of  such  fence  with  the  award  of  dam- 
ages allowed  for  the  right  of  way  for  such  railroad,  are  relieved 
and  exonerated  from  all  claims  for  damages  arising  out  of  the 
killing  or  maiming  any  animals  of  persons  who  thus  fail  to  construct 
and  maintain  such  fence; 

[When  damages  recoverable  by  company.]  And  the  owners  of 
such  animals  are  responsible  for  any  damages  or  loss  which  may 
accrue  to  such  corporation  from  such  animals  being  upon  their  rail- 
road track,  resulting  from  the  non-construction  of  such  fence,  unless 
it  is  shown  that  such  loss  or  damage  occurred  through  the  negli- 
gence or  fault  of  the  corporation,  its  officers,  agents,  or  employees. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Alaska,  Ann.  Codes  1907,  C.  C.  (Carter),  §§  334,  335.  b  Arizona,  Rev.  Stats. 
1901.  H  868;  Laws  1905,  pp.  65,  100,  §§  89,  90.  o  Arkansas,  Dig.  of  Stats.  1904 
(Kirby),  §6773.  a  Colorado,  Rev.  Stats.  1908,  §§5480,  5481.  e  Hawaii,  Rev. 
Laws  1905,  §  805.  t  Idaho,  Rev.  Codes  1909,  §  2814.  s  Iowa,  Ann.  Code  1897* 
§§2055,  2057.  n  Kansas,  Gen.  Stats.  1905  (Dassler),  §§6314,  6318,  6377,  6379. 
i  Minnesota,  Rev.  Laws  1905,  §§  1997-1999.  i  Missouri,  Ann.  Stats.  1906,  §  1105. 
k  Montana,  Rev.  Codes  1907,  §  4308.  i  Nebraska,  Comp.  Stats.  Ann.  1909, 
§§4686,  4687;  Ann.  Stats.  (Cobbey),  §§10571,  10572.  m  Nevada,  Comp.  Laws. 
Ann.  1900  (Cutting),  §1011.  "New  Mexico,  Comp.  Laws  1897,  §§241,  242. 
o  North  Dakota,  Rev.  Codes  1905,  §§  4299-4301.  p  Oklahoma,  Comp.  Laws  1909 
(Snyder),  §§1389,  1390-1392.  q  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  & 
Cot.),  §§  5139,  5140.  r  South  Dakota,  Rev.  Codes  1903,  C.  C.  §  542,  Sess.  Laws- 
1907,  p.  454,  §  1.  s  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  4528.  t  Utah,  Comp. 
Laws  1907,  §  456x.  u  Washington,  Code  1910  (Rem.  &  Bal.),  §§8730-8732. 
v  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §§1810,  1812,  1813.  »•  Wyoming, 
Rev.  Stats.  1899,  §  3213,  Laws  1907,  p.  136,  §§1,  2. 

ai  Alaska,  C.  C.  §  334.  Any  person,  per-  or  agent  thereof,  owning  or  operating 
sons,   company  or  corporation,   or  lessee       any    railroad    within    the    district,    shall 


Ch.  CX.] 


CODE  PROVISIONS. 


1511 


be  liable  for  the  value  of  any  horses, 
mules,  colts,  cows,  bulls,  calves,  hogs, 
or  sheep  killed,  and  for  reasonable  dam- 
ages for  any  injury  to  any  such  live- 
stock upon  or  near  any  unfenced  track 
of  any  railroad  in  the  district,  wherever 
such  killing  or  injury  is  caused  by  any 
moving  train  or  engine  or  cars  upon 
such  track.  A  substantial  wire  fence, 
four  feet  high,  constructed  with  four 
strands  of  wire  or  its  equivalent,  shall 
be  a  legal  fence. 

*2  ATaska,  C.  C.  §  335.  No  railroad  track 
shall  be  deemed  to  be  fenced  within  the 
meaning  of  this  chapter  unless  such 
track  is  guarded  by  such  fence  against 
the  entrance  thereon  of  any  such  live- 
stock on  either  side  of  the  track,  and 
not  more  than  one  hundred  feet  distant 
therefrom:  Provided,  complete  natural 
defenses  against  the  entrance  of  such 
stock  upon  said  track,  such  as  natural 
walls  or  deep  ditches,  shall  be  deemed 
and  held  to  be  a  fence  within  the  mean- 
ing of  this  chapter,  when  the  same,  in 
connection  with  other  and  ordinary  law- 
ful fences,  form  a  continuous  guard  and 
defense  against  the  entrance  of  such  live- 
stock upon  the  track. 

bi  Arizona,  fl  868.  In  all  cases  where 
the  livestock  of  any  person  or  persons 
is  injured  or  killed  by  locomotives  or 
cars  upon  any  portion  of  the  line  of  any 
railroad  company  within  this  territory, 
unfenced  by  a  good  and  sufficient  fence 
or  other  barrier  sufficient  to  turn  live- 
stock, by  the  company  or  corporation 
running  such  locomotives  or  cars,  shall 
be  liable  in  damages  therefor  to  the 
owner  or  owners  of  such  livestock,  to 
be  recovered  in  any  court  of  competent 
jurisdiction  within  this  territory,  unless 
it  be  shown  upon  the  trial  of  any  ac- 
tion instituted  for  the  recovery  of  such 
damages  that  the  owner  or  owners  of 
such  livestock,  his,  her  or  their  agent 
or  agents,  servant  or  servants,  immedi- 
ately contributed  to  such  killing  or  in- 
jury. The  mere  straying  of  livestock 
upon  such  unfenced  portions  of  such 
railroads  shall  not  be  held  upon  the  trial 
of  causes  brought  under  this  title  to  be 
any  evidence  of  contributory  negligence 
on  the  part  of  the  owner  or  owners  of 
such  livestock;  nor  shall  the  grazing 
of  the  same  unattended  by  a  herder  or 
herders  be  so  considered.  (See  also  p. 
8039,  and  Laws  1905,  pp.  65,  100,   §  89.) 

b2  Arizona,  Laws  1905,  pp.  65,  101,  §  90. 
Every    railroad    corporation   or   company 


operating  any  railroad  or  branch  thereof, 
within  the  limits  of  this  territory,  which 
negligently  injures  or  kills  any  horse, 
mare,  gelding,  filly,  jack,  Jennie  or  mule, 
or  any  cow,  heifer,  bull,  ox,  steer  or  calf, 
or  any  other  domestic  animal,  by  run- 
ning an  engine  or  engines,  car  or  cars, 
over  or  against  any  such  animal  shall  be 
liable  to  the  owner  of  such  animal  for 
the  damages  sustained  by  such  owner  by 
reason  thereof.  The  killing  or  injury 
shall  be  prima  facie  evidence  of  negli- 
gence on  the  part  of  such  corporation  or 
company.  Same  as  paragraph  3040,  B. 
S.  1901.     (Re-enacted  March  16,  1905.) 

c  Arkansas,  §  6773.  All  railroads  which 
are  now  or  may  be  hereafter  built  and 
operated  in  whole  or  in  part  in  this 
state  shall  be  responsible  for  all  dam- 
ages to  persons  and  property  done  or 
caused  by  the  running  of  trains  in  this 
state. 

di  Colorado,  §  54S0.  That  every  rail- 
road company  or  corporation  whose  lines 
or  road,  or  any  part  thereof  is  open  to 
use,  shall  within  six  months  after  the 
passage  of  this  act,  and  every  railroad 
company  or  corporation  formed  or  to  be 
formed  but  whose  lines  are  not  now 
open  for  use,  shall,  within  six  months 
after  the  lines  of  such  railroad  or  any 
part  thereof  are  open,  except  at  the 
crossings  of  public  roads  and  highways, 
and  within  the  limits  of  incorporated 
towns  and  cities,  erect,  and  thereafter 
maintain  fences  on  the  sides  of  their 
said  roads,  or  the  part  thereof  open  to 
use,  where  the  same  passes  through, 
along,  or  adjoining  enclosed  or  culti- 
vated fields  or  unenclosed  lands,  with 
openings  and  gates  therein  to  be  hung 
and  have  latches  and  hinges,  so  that  they 
may  be  easily  opened  and  shut  at  all  nec- 
essary farm  crossings  of  the  road,  for  the 
use  of  the  proprietors  or  owners  of  tne 
land  adjoining  such  railroad;  and  shall 
also  construct  where  the  same  has  not 
already  been  done,  and  hereafter  main- 
tain at  all  road  crossings  now  existing, 
or  hereafter  established,  good  and  suffi- 
cient cattle-guards.  Such  fences,  gates 
and  cattle-guards  shall  be  amply  suffi- 
cient to  prevent  horses,  mules,  cattle, 
sheep  and  other  like  animals  from  get- 
ting on  said  railroads:  and  so  long  a? 
such  fences,  gates,  and  cattle-guards 
shall  not  be  constructed  after  the  time 
hereinbefore  prescribed  for  making  the 
same  has  elapsed,  and  when  such  fences 
and  guards,   or  any  part  thereof,   is  not 


1512 


NEGLIGENCE  AT  CROSSINGS,  ETC. 


[Tit.  XIIL 


sufficient  or  not  in  sufficiently  good  re- 
pair to  accomplish  the  object  for  -which 
the  same,  as  herein  prescribed,  is  in- 
tended, such  railroad  corporation  shall 
be  liable  for  any  and  all  damages  which 
shall  be  done  by  the  agent,  employees, 
trains  or  cars  of  such  corporation,  or  by 
the  employees,  engines,  trains  or  cars  of 
any  other  corporation  permitted  and 
running  over  and  upon  their  said  rail- 
road to  any  such  cattle,  horses,  sheep,  or 
other  livestock  thereon;  and  when  such 
fences,  gates,  and  guards  have  been 
built  and  duly  made,  and  shall  be  kept 
in  good  and  sufficient  repair,  such  rail- 
road corporation  shall  not  be  liable  for 
any  such  damages  unless  negligently 
and  wilfully  done. 

d2  Colorado,  §  5481.  Any  railroad  com- 
pany hereafter  running  or  operating  its 
roads  in  this  state,  and  failing  to  fence 
on  both  sides  thereof  against  all  live- 
stock running  at  large  at  all  points  as 
herein  provided,  shall  be  absolutely  lia- 
ble to  the  owners  of  any  such  livestock 
killed,  injured  or  damaged  by  their 
agents,  employees,  engines  or  cars  or  by 
the  agents,  employees,  engines  or  cars 
belonging  to  any  other  railroad  com- 
pany or  corporation  running  over  and 
upon   such   road  or  there  being. 

e  Hawaii,  §  805.  The  corporation  shall 
fence  in  the  line  of  railway  with  a  good 
and  sufficient  legal  fence. 

t  Idaho,  §  2S14.  Railroad  corporations 
must  make  and  maintain  a  good  and  suf- 
ficient fence  on  either  or  both  sides  of 
their  track  or  property,  whenever  the 
line  of  their  road  at  any  time  passes 
through  or  along,  or  abuts  upon,  or  is 
contiguous  to,  private  property,  or  en- 
closed land  in  the  actual  possession  of 
another.  (Remainder  same  as  last  two 
sentences  of  Cal.  Civ.  Code  §  485.) 

gi  Iowa,  §  2055.  Any  corporation  oper- 
ating a  railway,  and  failing  to  fence  the 
same  against  livestock  running  at  large 
and  maintain  proper  and  sufficient  cat- 
tle-guards at  all  points  where  the  right 
to  fence  or  maintain  cattle-guards  exists, 
shall  be  liable  to  the  owner  of  any  stock 
killed  or  injured  by  reason  of  the  want 
of  such  fence  or  cattle-guards  for  the 
full  amount  of  the  damages  sustained 
by  the  owner  on  account  thereof,  unless 
It  was  occasioned  by  his  wilful  act  or 
that  of  his  agent;  and  to  recover  the 
same  it  shall  only  be  necessary  for  him 
to  prove  the  loss  of  or  Injury  to  his 
property.      If    such    corporation    falls    or 


neglects  to  pay  such  damages  within 
thirty  days  after  notice  in  writing  that 
a  loss  or  injury  has  occurred,  accom- 
panied by  an  affidavit  thereof,  served 
upon  any  officer  or  station  or  ticket 
agent  employed  by  said  corporation  in 
the  county  where  such  loss  or  injury  oc- 
curred, such  owner  shall  be  entitled  to 
recover  from  the  corporation  double  the 
amount  of  damages  actually  sustained 
by  him.  No  law  of  the  state  or  any  lo- 
cal or  police  regulations  of  any  county, 
township,  city  or  town,  relating  to  the 
restraint  of  domestic  animals,  or  in  rela- 
tion to  the  fences  of  farmers  or  land 
owners,  shall  be  applicable  to  railway 
tracks,  unless  specifically  so  stated  in 
such  law  and  regulation.  Upon  depot 
grounds  necessarily  used  by  the  public 
and  the  corporation,  the  operating  of 
trains  at  a  greater  rate  of  speed  than 
eight  miles  an  hour  where  no  fence  is 
built  shall  be  negligence,  and  shall  ren- 
der such  corporation  liable  for  all  dam- 
ages occasioned  thereby,  in  the  same 
manner  and  to  the  same  extent,  except 
as  to  double  damages,  as  in  cases  where 
the  right  to  fence  exists. 

g2  Iowa,  §  2057.  That  section  two  thou- 
sand and  fifty-seven  (2057)  of  the  Code 
be  and  the  same  is  hereby  repealed 
and  the  following  enacted  in  lie  i 
thereof:  "All  railway  corporations  own- 
ing or  operating  a  line  of  railway 
within  the  state  shall  construct,  main- 
tain, and  keep  in  repair  a  suitable  fence 
of  posts  and  barb  wire,  or  woven  wire, 
or  both  combined,  or  posts  and  boards, 
or  any  other  fence  which  the  fence 
viewers  shall  determine  to  be  equivalent 
thereto,  on  each  side  of  the  track  thereof, 
so  connected  with  cattle-guards  at  all 
public  road  crossings  as  to  prevent  cat- 
tle, horses,  sheep,  swine,  and  other 
livestock  from  getting  on  the  railroad 
tracks.  Such  tracks  shall  be  fenced 
within  six  months  after  the  completion 
of  the  same  or  any  part  thereof.  Such 
fence,  when  of  barb  wire,  shall  be  of  five 
wires;  when  of  barb  wire  and  woven 
wire,  it  shall  consist  of  three  barb  wires 
above  and  woven  wire  not  less  than 
twenty-four  inches  wide  at  the  bottom, 
or  it  may  consist  entirely  of  woven 
wire,  in  which  event  the  woven  wire 
shall  be  not  less  than  fifty  inches  wide; 
all  of  the  above  to  be  securely  fastened 
to  posts  not  more  than  twenty  feet 
apart,  the  top  of  such  fences  to  be  not 
less  than  fifty-four  Inches  high;  or  such 


Ch.  CX.] 


CODE  PROVISIOxNS. 


15LJ 


fences  may  consist  of  five  boards,  se- 
curely nailed  to  posts  set  not  more  than 
eight  feet  apart,  and  to  be  not  less  than 
fifty-four  inches  high,  provided,  how- 
ever, that,  where  such  fences  are  con- 
structed entirely  of  barb  wire,  in  addi- 
tion to  the  above,  on  the  written  request 
of  any  person  owning  land  abutting  such 
right  of  way,  who  has  constructed,  and 
is  maintaining  around  his  said  land,  or 
any  part  thereof,  a  hog-tight  fence  on 
all  sides  thereof  except  along  such  right 
of  way,  such  railroad  corporations  shall 
re-enforce  such  right  of  way  fence  with 
such  additional  barb  or  woven  wire  as  is 
necessary  to  make  it  hog  tight.  Fences 
repaired  or  rebuilt  shall  conform  to  the 
foregoing  provisions.  Nothing  in  this  or 
the  following  sections  shall  be  construed 
to  compel  a  railway  company  operating 
a  third-class  line  to  fence  its  roads 
through  the  land  of  any  farmer  or  other 
person  who  by  written  agreement  with 
such  company  waives  the  fencing 
thereof."  (Approved  April  1,  1907,  Sup. 
1907.) 

hi  Kansas,  §  6314.  Every  railway  com- 
pany or  corporation  in  this  state,  and 
every  assignee  or  lessee  of  such  com- 
pany or  corporation,  shall  be  liable  to 
pay  the  owner  the  full  value  of  each 
and  every  animal  killed,  and  all  dam- 
ages to  each  and  every  animal  wounded 
by  the  engine  or  cars  on  such  railway, 
or  in  any  other  manner  whatever  in  op- 
erating such  railway,  irrespective  of  the 
fact  as  to  whether  such  killing  or  wound- 
ing was  caused  by  the  negligence  of 
such  railway  company  or  corporation,  or 
the  assignee  or  lessee  thereof,  or  not. 

h2  Kansas,  §  631S.  This  act  shall  not 
apply  to  any  railway  company  or  corpo- 
ration, or  the  assignee  or  lessee  thereof, 
whose  road  is  enclosed  with  a  good  and 
lawful  fence  to  prevent  such  animal  from 
being  on  such  road. 

h3  Kansas,  §  6377,  G.  S.  1905.  That 
section  5919  of  the  General  Statutes  of 
1901  be  and  the  same  is  amended  to  read 
as  follows:  Sec.  5919.  Any  person,  per- 
sons or  corporations  owning  land  by  or 
through  which  any  railroad  or  any  elec- 
tric interurban  line  has  been  or  may  be 
constructed,  who  has  enclosed  or  may  en- 
close the  same  or  any  part  thereof,  and 
adjacent  to  the  line  of  such  railroad  or 
Interurban  line,  with  either  a  lawful  fence 
or  a  hog-tight  fence,  may  demand  of  such 
railroad  or  interurban  company  that  it 
enclose  its  line  next  thereto  with  a  law- 


ful fence  or  a  hog-tight  fence  corre- 
sponding in  class  of  fence  to  that  main- 
tained by  the  owner,  and  maintain  the 
same;  provided,  that  the  following  shall 
constitute  a  hog-tight  fence  for  the 
purpose  of^  this  act:  A  woven-wire 
fence  not  less  than  twenty-six  inches 
high  with  not  less  than  seven  cables 
and  meshes  not  to  exceed  six  inches  in 
length.  The  bottom  mesh  shall  be  not 
more  than  three  inches  wide;  the  sec- 
ond not  more  than  three  and  one- half 
inches  wide,  the  third  not  more  than 
four  inches  wide,  the  fourth  not  more 
than  four  and  one-half  inches  wide,  the 
fifth  not  more  than  five  inches  wide,  and 
the  sixth  not  more  than  six  inches  wide. 
The  bottom  wire  of  the  said  woven-wire 
fence  shall  be  placed  not  to  exceed  two 
inches  from  the  surface  of  the  ground. 
And  in  addition  to  the  woven  wire  al- 
ready prescribed  there  shall  be  not  less 
than  three  barbed  wires  placed  above 
said  woven  wire.  The  first  barbed  wire 
above  the  woven  wire  shall  be  placed 
four  inches  above  the  top  of  the  woven- 
wire  fence.  The  second  barbed  wire 
shall  be  placed  eight  inches  above  the 
first  barbed  wire,  and  the  third  barbed 
wire  to  be  placed  eight  inches  above  the 
second  barbed  wire;  in  all  forty-eight 
inches.  The  posts  shall  be  of  ordinary 
size  for  fence  purposes  and  set  in  the 
ground  at  least  two  feet  deep  and  not 
to  exceed  sixteen  feet  apart.  The  barbs 
on  the  barbed  wire  shall  not  exceed  six 
inches  apart,  said  wire  to  be  of  not  less 
than  No.    13,   standard  gage. 

Sec.  2.  That  original  section  5919, 
General  Statutes  1901,  and  all  acts  or 
parts  of  acts  in  conflict  herewith,  be  and 
the  same  are  hereby  repealed. 

Sec.  3.  That  this  act  shall  take  ef- 
fect and  be  in  force  from  and  after 
its  publication  in  the  statute-book. 
(Amended  as  §  5919,  G.  S.  1901,  Feb.  13, 
1909,  Laws  1909,  p.  476.) 

h4  Kansas,  §  6379.  If  the  party  so  no- 
tified shall  refuse  to  build  such  fence  in 
accordance  with  the  provisions  of  this 
act,  the  owner  or  occupant  of  the  land 
required  to  be  fenced  shall  have  the 
right  to  enter  upon  the  land  and  track 
of  said  railroad  company,  and  may  build 
such  fence;  and  the  person  so  building 
such  fence  shall  be  entitled  to  the  value 
thereof  from  such  corporation  or  party 
operating  or  using  such  railroad,  to  be 
recovered  with  interest  at  the  rate  of 
one   per   cent  per   month   from   the   time 


151-1 


NEGLIGENCE  AT  CROSSINGS,  ETC. 


[Tit.  XIII. 


such  fence  was  built,  together  with  a 
reasonable  attorney's  fee  for  the  prose- 
cution of  any  suit  to  recover  the  same. 

11  Minnesota,  §  1997.  Every  such  com- 
pany shall  build  and  maintain,  on  each 
side  of  all  lines  of  road  owned  and  oper- 
ated by  it,  good  and  substantial  fences, 
except  at  stations  and  depot  grounds 
and  other  places  which  the  necessary 
business  of  the  road  or  public  conven- 
ience requires  to  be  open,  and  except  in 
the  platted  part  of  any  municipality. 
Whenever  the  land  of  any  person  lying 
along  the  right  of  way  of  any  railroad, 
is  enclosed  on  three  sides  by  a  woven 
wire  fence,  such  railroad  company  shall 
erect  and  maintain  a  woven  wire  fence 
of  like  character  and  quality  along  the 
said  right  of  way  enclosing  the  remain- 
ing side  of  said  land.  It  shall  also  build 
and  maintain  such  fences  in  such  parts 
of  any  municipality  as  may  be  directed 
by  the  governing  body  thereof  upon  no- 
tice as  in  case  of  road  crossings.  It  shall 
also  build  and  maintain  good  and  suffi- 
cient cattle-guards  at  all  road  crossings 
and  other  openings.  (Amended  Apr.  23, 
1907,    Laws    1907,    p.    456.) 

12  Minnesota,  §  199S.  Any  such  com- 
pany failing  to  comply  with  the  require- 
ments of  §  1997  shall  be  liable  for  all 
damages  resulting  therefrom,  and  for  all 
domestic  animals  killed  or  injured  by  its 
negligence;  and,  if  it  shall  fail  to  pay  the 
actual  damages  occasioned  by  such  kill- 
ing or  injury  within  thirty  days  after 
such  damage  occurs,  then,  in  case  of  re- 
covery therefor  by  action  brought  after 
such  thirty  days,  if  in  district  court  the 
plaintiff  shall  recover  double  costs,  and 
if  in  justice  court  ten  dollars'  costs. 
Such  company,  before  the  commence- 
ment of  action,  may  make  tender  for 
such  injury,  and  if  the  amount  recov- 
ered, exclusive  of  interest,  shall  not  ex- 
ceed the  tender,  the  plaintiff  shall  re- 
cover no  costs  nor  disbursements. 

13  Minnesota,  §  1999.  Any  such  com- 
pany operating  a  line  of  railroad  in  this 
state,  which  has  failed  or  neglected  to 
fence  said  road  and  to  erect  crossings 
and  cattle-guards,  shall  be  liable  for  all 
damages  sustained  by  any  person  in  con- 
sequence of  such  failure  or  neglect:  Pro- 
vided, that  the  measure  of  damages  for 
failure  to  construct  or  maintain  such 
fence  shall  be  as  follows:  The  owner  of 
any  land  abutting  on  the  line  of  railway 
of   such    company    may    serve    notice   on 


any  of  its  station  agents  between  April  1 
and  October  1  of  any  year,  requiring  the 
construction  of  a  fence  on  the  line  be- 
tween his  land  and  its  right  of  way.  If 
such  company  shall  not  construct  the 
same  within  forty  days  after  service  of 
such  notice,  the  landowner  may  recover 
of  the  company  an  amount  not  exceeding 
twice  the  cost  of  such  construction,  with 
costs  and  reasonable  attorney's  fee,  to 
be  allowed  by  the  court,  or  he  may  con- 
struct such  fence  after  the  expiration  of 
such  time,  and  receive  from  the  com- 
pany double  the  cost  of  construction, 
with  like  costs  and  attorney's  fee.  Such 
fence  shall  be  kept  in  repair  by  such 
company  in  like  manner  and  under  like 
penalties  as  if  built  by  such  company. 
But  failure  to  serve  such  notice  shall  not 
relieve  such  company  from  liability  for 
damages  for  injuries  to  persons  or  do- 
mestic animals  or  other  property,  result- 
ing from  failure  to  fence  its  road. 

i  Missouri,  §  1105.  Every  railroad  cor- 
poration formed  or  to  be  formed  in  this 
state,  and  every  corporation  to  be  formed 
under  this  article,  or  any  railroad  corpo- 
ration running  or  operating  any  railroad 
in  this  state,  shall  erect  and  maintain 
lawful  fences  on  the  sides  of  the  road 
where  the  same  passes  through,  along,  or 
adjoining  enclosed  or  cultivated  fields  or 
unenclosed  lands,  with  openings  and 
gates  therein,  to  be  hung  and  have 
latches  or  hooks,  so  that  they  may  be 
easily  opened  and  shut,  at  all  necessary 
farm  crossings  of  the  road,  for  the  use 
of  the  proprietors  or  owners  of  the  land 
adjoining  such  railroad,  and  also  to  con- 
struct and  maintain  cattle-guards,  where 
fences  are  required,  sufficient  to  prevent 
horses,  cattle,  mules  and  all  other  ani- 
mals from  getting  on  the  railroad;  and 
until  fences,  openings,  gates  and  farm 
crossings  and  cattle-guards  as  aforesaid 
shall  be  made  and  maintained,  such  cor- 
poration shall  be  liable  in  double  the 
amount  of  all  damages  which  shall  be 
done  by  its  agents,  engines  or  cars  to 
horses,  cattle,  mules  or  other  animals  on 
said  road,  or  by  reason  of  any  horses, 
cattle,  mules  or  other  animals  escaping 
from  or  coming  upon  said  lands,  fields  or 
enclosures,  occasioned  in  either  case  by 
the  failure  to  construct  or  maintain  such 
fences  or  cattle-guards.  After  such 
fences,  gates,  farm  crossings  and  cattle- 
guards  shall  be  duly  made  and  main- 
tained,    said    corporation    shall    not    be 


Ch.  CX.] 


CODE  PROVISIONS. 


1515 


liable  for  any  such  damage,  unless  neg- 
ligently or  wilfully  done.     If  any  corpo- 
ration aforesaid  shall,  after  three  months 
from  the  time  of  the  completion  of  its 
road  through  or  along  the  lands,  fields  or 
enclosures  hereinbefore  named,  fail,  neg- 
Vect   or  refuse   to   erect   or   maintain   in 
good    condition    any    fence,    openings    or 
farm  crossings  or  cattle-guards  as  herein 
required,  then  the  owners  or  proprietors 
of   said   lands,    fields    or   enclosures   may 
erect    or    repair    such    fences,    openings, 
gates  or  farm  crossings  or  cattle-guards, 
and  shall  thereupon  have  a  right  to  sue 
and  recover  from  such  corporation  in  any 
court  of  competent  jurisdiction  the  cost 
of  such   fences,   openings,   gates,    cattle- 
guards  or  repairs,   together  with  a  rea- 
sonable     compensation      for     his      time, 
trouble  and  labor  in  and  about  the  con- 
struction of  such  fences,  openings,  gates 
or  cattle-guards,  or  the  making  of  such 
repairs,  together  with  a  reasonable  com- 
pensation for  his  time,  trouble  and  labor 
in   and   about   the    construction    of    such 
fences,  openings,  gates  or  cattle-guards, 
or  the  making  of  such  repairs,   together 
with    ten    per    cent   interest    per    annum 
thereon,  from  the  time  of  the  service  of 
process    upon    such    corporation    in    such 
suit:     Provided,  that  before  such  repairs 
are   commenced,    such   owner   shall   give 
five    (5)   days'   notice,   in  writing,    to   the 
railroad   company,   by  delivering  a  copy 
thereof  to  the  nearest  section  foreman  or 
station  agent  of  such  railroad  company, 
that  the  railroad  fence  needs  repairs  at  a 
place  or  point  named  in  the  notice,   on 
the  lands  of  such  owner.     And  in  every 
such  action,  if  the  plaintiff  recover  judg- 
ment,   there    shall    be    taxed    as    costs 
agai  ist  the  defendant  an  attorney's  fee, 
to  be  fixed  by  the  court  of  justice  before 
which  or  whom  the  cause  may  be  pend- 
ing, at  such  sum  as  may  be  a  reasonable 
compensation  for  all  legal  services  ren- 
dered  for  plaintiff  in   the   case,   without 
regard  to  any  agreement  between  plaint- 
iff and  his  counsel  as  to  fees;   but  such 
fee  shall  not  be  taxed  so  long  as  any  ap- 
peal taken  in  such  case  shall  remain  un- 
disposed   of.      And    if    any    person    shall 
ride,   lead  or  drive   any   horses   or  other 
animals    upon    such    road    within    such 
fences    and    guards    other    than    a    farm 
crossing,  without  the  consent  of  the  cor- 
poration, he  shall,  for  every  such  offense, 
forfeit  and  pay  a  sum  not  exceeding  ten 
dollars,    and  shall   also  pay  all  damages 


which  shall  be  sustained  thereby  to  the 
party  injured.  If  any  person  not  con- 
nected with  or  employed  upon  the  rail- 
road shall  walk  upon  the  track  or  tracks 
thereof,  except  where  the  same  shall  be 
laid  across  or  along  a  publicly  traveled 
road  or  street,  or  at  any  crossing,  as 
hereinbefore  provided,  and  shall  receive 
harm  on  account  thereof,  such  person 
shall  be  deemed  to  have  committed  a 
trespass  in  so  walking  upon  said  track 
in  any  action  brought  by  him  on  account 
of  such  harm  against  the  corporation 
owning  such  railroad,  but  not  otherwise. 
k  Montana,  §  4308.  Railroad  corpora- 
tions must  make  and  maintain  a  good 
and  legal  fence  on  both  sides  of  their 
track  and  property,  and  maintain,  at  all 
crossings,  cattle-guards  over  which  cat- 
tle or  other  domestic  animals  cannot 
pass.  In  case  they  do  not  make  and 
maintain  such  fence  and  guards,  if  their 
engines  or  cars  shall  kill  or  maim  any 
cattle  or  other  domestic  animals  upon 
their  line  of  road,  they  must  pay  to  the 
owner  of  such  cattle  or  other  domestic 
animals,  in  all  cases,  a  fair  market  price 
for  the  same,  unless  it  occurred  through 
the  neglect  or  fault  of  the  owner  of  the 
animal  so  killed  or  maimed.  Provided, 
that  nothing  herein  shall  be  construed  so 
as  to  prevent  any  person,  or  persons, 
from  recovering  damages  from  any  rail- 
road corporation  for  its  negligent  killing 
or  injury  to  any  cattle,  or  other  domestic 
animals,  at  spurs,  sidings,  Y's,  crossings 
and  turntables. 

li  Nebraska,  §  46S6.  That  every  rail- 
road corporation  whose  lines  of  road  or 
any  part  thereof  is  open  for  use  shall, 
within  six  months  after  the  passage  of 
this  act,  and  every  railroad  company 
formed  or  to  be  formed,  but  whose  lines 
are  not  now  open  for  use,  shall,  within 
six  months  after  the  lines  of  such  rail- 
road or  any  part  thereof  are  open,  erect 
and  thereafter  maintain  fences  on  the 
sides  of  their  said  railroad,  or  the  part 
thereof  so  open  for  use,  suitable  and  am- 
ply sufficient  to  prevent  cattle,  horses, 
sheep,  and  hogs  from  getting  on  the 
said  railroad,  except  at  the  crossings  of 
public  roads  and  highways,  and  within 
the  limits  of  towns,  cities,  and  villages, 
with  openings,  or  gates,  or  bars  at  all  the 
farm  crossings  of  such  railroad,  for  the 
use  of  the  proprietors  of  the  lands  adjoin- 
ing such  railroad,  and  shall  also  con- 
struct, where  the  same  has  not  already 


1516 


NEGLIGENCE  AT  CROSSINGS,  ETC. 


[Tit.  XIII. 


been  done,  and  hereafter  maintain  at  all 
road-crossings,  now  existing  or  here- 
after established,  cattle-guards  suitable 
and  sufficient  to  prevent,  cattle,  horses, 
sheep,  and  hogs  from  getting  on  to  such 
railroad,  and  so  long  as  such  fences  and 
cattle-guards  shall  [not]  be  made  after 
the  time  hereinbefore  prescribed  for 
making  the  same  shall  have  elapsed,  and 
when  such  fences  and  guards,  or  any 
part  thereof,  are  not  in  sufficiently  good 
repair  to  accomplish  the  object  for  which 
the  same  is  herein  prescribed,  is  in- 
tended, such  railroad  corporation  and  its 
agents  shall  be  liable  for  any  and  all 
damages  which  shall  be  done  by  the 
agents,  engines,  or  trains  of  any  such 
corporation,  or  by  the  locomotives,  en- 
gines, or  trains  of  any  other  corpora- 
tions, permitted  and  running  over  or 
upon  their  said  railroad,  to  any  cattle, 
horses,  sheep,  or  hogs  thereon;  and  when 
such  fences  and  guards  shall  have  been 
fully  and  duly  made,  and  shall  be  kept 
in  good  and  sufficient  repair,  such  rail- 
road corporation  shall  not  be  liable  for 
any  such  damages,  unless  negligently  or 
wilfully  done. 

12  Nebraska,  §  46S7.  Any  railroad  com- 
pany hereafter  running  or  operating  its 
road  in  this  state,  and  failing  to  fence  on 
both  sides  thereof,  against  all  livestock 
running  at  large  at  all  points,  shall  be 
absolutely  liable  to  the  owner  of  any  live- 
stock injured,  killed,  or  destroyed  by 
their  agents,  employees,  or  engines,  cr  by 
the  agents,  employees,  or  engines  belong- 
ing to  any  other  railroad  company,  run- 
ning over  and  upon  such  road,  or  there 
being;  provided,  that  in  case  the  rail- 
road company  liable  under  the  provisions 
of  this  section,  shall  neglect  or  refuse  to 
pay  the  value  of  any  property  so  injured 
or  destroyed,  after  thirty  days'  notice  in 
writing  given,  accompanied  by  an  affi- 
davit of  the  injury  or  destruction  of  said 
property,  to  any  officer  of  the  company, 
or  any  station  agent,  or  ticket  agent,  or 
conductor  employed  in  the  management 
of  its  business,  in  the  county  where  the 
injury  complained  of  shall  have  been 
committed,  such  railroad  company,  their 
agents,  and  employees  shall,  in  an  action 
brought  to  recover  damages  therefor,  be 
held  and  they  are  hereby  declared  to  be 
liable  to  pay  double  the  value  of  the 
property  so  injured,  killed,  or  destroyed 
as  aforesaid. 


m  Nevada,  5  1011,  last  three  sentences 
substantially  same  as  Cal.  Civ.  Code 
§  485. 

ni  New  Mexico,  §  241.  Hereafter  every 
railroad  corporation  whose  lines  of  road^ 
or  any  part  thereof,  are  open  for  use, 
shall,  within  six  months  after  the  pas- 
sage of  this  act,  and  every  railroad  com- 
pany formed  or  to  be  formed,  but  whose 
lines  are  not  now  open  for  use,  shall, 
within  six  months  after  the  lines  of  such 
railroad  or  any  part  thereof  are  open, 
erect  and  thereafter  maintain  fences  on 
the  sides  of  their  said  railroad,  or  the 
part  thereof  so  open  for  use,  suitably 
and  amply  sufficient  to  prevent  cattle, 
horses,  sheep,  mules,  burros,  and  hogs 
from  getting  on  the  said  railroad,  except 
at  the  crossings  of  public  roads  and  high- 
ways, and  within  the  limits  of  towns, 
cities  and  villages,  and  shall  also  con- 
struct, where  the  same  has  not  already 
been  done,  and  hereafter  maintain  at  all 
public  road  crossings,  now  existing  or 
hereafter  established,  cattle-guards  suit- 
able and  sufficient  to  prevent  cattle, 
horses,  sheep,  mules,  burros,  and  hogs 
from  getting  onto  said  railroad.  If  any 
railroad  corporation  shall  fail  to  con- 
struct such  fences  and  cattle-guards  as 
herein  directed,  each  and  every  one  of 
said  railroad  corporations  so  failing  to 
comply  with  the  directions  of  this  act, 
shall  be  liable  in  damages  in  the  manner 
and  to  the  extent  hereinafter  limited  and 
provided.  And  any  railroad  corporation 
which  has  so  failed  to  fence  its  line,  in 
addition  to  the  penalties  above  described 
shall  be  and  hereby  is  required  to  post  a 
notice  in  a  conspicuous  place  upon  its 
depot  building  at  the  county  seat  of  the 
county  through  which  its  line  or  lines 
may  run,  every  ninety  (90)  days,  giving 
therein  a  full  description  of  the  brands 
and  marks  of  every  animal  killed  or  dam- 
aged during  the  ninety  days  next  preced- 
ing the  posting  of  said  notice.  (Amended 
Mch.  21,  1901,  Laws  1901,  p.  165.) 

n2  New  Mexico,  §  242.  Whenever  any 
cattle,  horses,  sheep,  mules,  burros  or 
hogs  shall  be  killed,  injured  or  destroyed 
by  any  railroad  company  operating  a 
railroad  in  this  territory,  or  by  its  agents, 
trains,  cars  or  locomotives,  at  any  point 
on  its  line  of  road,  where  by  law  such- 
railroad  is  required  to  be  fenced,  and  the 
owner  of  any  such  animal,  so  killed,  in- 
jured or  destroyed,   shall   make   affidavit 


Ch.  CX.] 


CODE  PROVISIONS. 


151 


of  his  ownership  and  of  the  injury  or 
destruction  of  said  property,  and  of  the 
value  of  the  same  or  of  the  amount  of 
injury  done  thereto,  and  file  the  same 
with  and  give  ninety  days'  notice  in  writ- 
ing to  any  station  agent,  employed  in 
the  management  of  the  business  of  such 
railroad  company,  in  the  county  where 
the  killing,  injury  or  destruction  com- 
plained of  shall  have  been  committed, 
such  killing,  injury  or  destruction  is 
hereby  made  prima  facie  evidence  of  the 
negligence  on  the  part  of  such  railroad 
company;  and  if  such  railroad  company, 
at  the  expiration  of  said  ninety  days 
shall  not  have  paid  for  the  animal  killed 
the  fair  market  value  thereof,  or  if  the 
animal  has  not  been  killed,  the  actual 
amount  of  damage  done  by  reason  of  the 
injury  inflicted  by  such  railroad  com- 
pany, upon  suit  brought  for  the  recovery 
of  damages  for  such  killing,  injury  or  de- 
struction, judgment  shall  be  rendered 
against  said  railroad  company  for  the 
actual  value  of  the  animal  or  for  the 
damage  inflicted,  if  the  animal  has  not 
been  killed,  unless  said  company  shall  be 
able  to  overcome  the  presumption  of  neg- 
ligence based  upon  the  fact  of  the  kill- 
ing, injury  or  destruction  as  herein  pro- 
vided and  establish  that  such  killing, 
injury  or  destruction  was  not  the  result 
of  negligence  on  the  part  of  said  railroad 
company  or  its  agents  in  the  manage- 
ment of  Its  trains,  cars  or  locomotives: 
Provided,  that  if  the  owner  make  claim 
for  a  greater  sum  than  the  actual  mar- 
ket value  of  the  property  killed  or  de- 
stroyed, or  for  greater  damage  than  was 
sustained  by  him  on  account  of  any  in- 
jury to  any  such  animal  or  animals,  then 
and  in  such  event,  in  case  judgment 
shall  be  rendered  against  the  railroad 
company  for  a  sum  not  exceeding  or  for 
a  less  sum  than  the  amount  offered  and 
for  which  voucher  was  tendered  by  such 
railroad  company  in  settlement  and  sat- 
isfaction of  such  claim,  the  costs  of  the 
action  shall  be  taxed  against  such  owner: 
And,  provided,  further.  The  provisions  of 
this  act  shall  apply  to  railroad  corpora- 
tions in  the  hands  of  receivers  and  in 
order  to  sue  such  receiver  it  shall  not 
be  necessary  to  obtain  permission  of  the 
court  by  whom  such  receivers  were  ap- 
pointed. 

01  North  Dakota,  §  4299.  Whenever  the 
owner  of  any  tract  of  land  abutting 
against  any  line  of  railroad   within   this 


state  shall  desire  to  enclose  any  such 
tract  of  land  for  pasturage  or  other  pur- 
poses and  shall  construct  a  good  and 
sufficient  fence  about  said  tract  of  land 
on  all  sides  except  along  the  side  abut- 
ting against  such  railroad  it  shall  be  the 
duty  of  such  railroad  company  to  con  • 
struct  a  good  and  sufficient  fence  not  less 
than  four  and  one-half  feet  high  on  the 
side  of  such  tract  or  lot  as  far  as  the 
same  extends  along  the  line  of  such  rail- 
road and  to  maintain  the  same  in  good 
repair  and  condition,  until  released 
therefrom  by  the  owner  of  said  tract  or 
until  the  owner  of  said  tract  shall  have 
ceased  to  maintain,  in  good  repair  and 
condition  for  the  term  of  one  year,  his 
portion  of  the  fence  around  such  enclos- 
ure. 

02  North  Dakota,  §  4300.  Whenever  tho 
owner  of  any  tract  of  land  shall  have 
completed  his  portion  of  the  fence  about 
such  proposed  enclosure  he  shall  give 
written  notice  of  its  completion  to  the 
railroad  company  upon  whose  line  said 
tract  is  situated  by  personal  service  upon 
the  agent  of  said  company  at  the  sta- 
tion nearest  to  the  proposed  enclosure 
describing  in  said  notice  the  situation  of 
said  tract  and  the  number  of  acres  to 
be  enclosed,  as  near  as  may  be,  and  the 
length  of  the  fence  required  along  the 
line  of  such  railroad  to  complete  the  pro- 
posed enclosure;  and  it  shall  be  the  duty 
of  the  railroad  company  to  construct  and 
complete  its  portion  of  such  fence  within 
sixty  days  after  the  service  of  such  no- 
tice. 

03  North  Dakota,  §  4301.  If  any  rail- 
road company  shall  neglect  or  refuse  to 
comply  with  any  of  the  requirements  of 
the  last  two  sections  it  shall  be  lawful 
for  the  owner  of  such  tract  to  construct 
or  repair  the  fence  along  the  line  of  such 
railroads  and  the  railroad  company  shall 
be  liable  to  the  owner  thereof  to  an 
amount  not  exceeding  one  dollar  and 
twenty-five  cents  per  rod,  to  be  recov- 
ered in  a  civil  action;  and  such  railroad 
company  shall  be  liable  for  all  damages 
accruing  by  reason  of  such  neglect  or  re- 
fusal. 

pi  Oklahoma,  Comp.  Laws  1909  (Sny- 
der), §  13S9.  It  shall  be  the  duty  of  every 
person  or  corporation  owning  or  oper- 
ating any  railroad  in  the  State  of  Okla- 
homa to  fence  its  road,  except  at  public 
highways  and  station  grounds,  with  a 
good   and   lawful   fence. 


1518 


NEGLIGENCE  AT  CROSSINGS,  ETC. 


[Tit.  X11I 


p2  Oklahoma,  Comp.  Laws  1909  (Sny- 
der), §  1390.  A  lawful  fence,  under  the 
provisions  of  this  act,  shall  be  composed 
of  posts  and  barb  wires,  four  wires  to  be 
firmly  fastened  to  the  posts,  such  posts 
to  be  not  more  than  one  rod  apart,  the 
top  wire  to  be  not  less  than  fifty-four 
nor  more  than  fifty-eight  inches  from  the 
ground,  and  the  bottom  wire  to  be  not 
more  than  twenty  nor  less  than  fourteen 
inches  from  the  ground. 

ps  Oklahoma,  Comp.  Laws  1909  (Sny- 
der), §  1391.  Any  person  owning  or  oc- 
cupying land  adjacent  to  any  railroad 
track  of  any  railroad  company  shall  have 
the  right  to  attach  to  the  fence  con- 
structed along  the  track  or  right  of  way 
of  said  railroad  company,  any  wires, 
boards  or  other  material,  so  as  to  make 
the  fence  of  said  railroad  company  suf- 
ficient to  prevent  any  hogs  or  pigs  from 
getting  upon  the  track  of  said  railroad 
company. 

P4  Oklahoma,  Comp.  Laws  1909  (Sny- 
der), §  1392.  Whenever  any  railroad  cor- 
poration or  the  lessee,  person,  company 
or  corporation  operating  any  railroad, 
shall  neglect  to  build  and  maintain  such 
fence,  as  provided  in  this  act,  such  rail- 
road corporation,  lessee,  person,  com- 
pany or  corporation  operating  the  same, 
shall  be  liable  for  all  animals  killed  by 
reason  of  the  failure  to  construct  such 
fence. 

qi  Oregon,  §  5139,  substantially  same  as 
Alaska  Civ.  Code  §  334,  except  omit  last 
sentence. 

q2  Oregon,  §  5140,  substantially  same  as 
Alaska  Civ.  Code  §  335,  except  in  line  8, 
after  "therefrom,"  insert  "Provided,  that 
whatever  is  a  lawful  fence  under  the 
laws  of  this  state  in  the  county  where 
such  killing  or  injury  shall  occur,  and  no 
other,  under  the  laws  of  this  state  shall 
be  held  a  lawful  fence  under  this  act," 
before  the  proviso  in  the  Alaska  section. 

n  South  Dakota,  C.  C,  §542.  When- 
ever the  owner  of  any  tract  of  land  abut- 
ting against  any  line  of  railroad  within 
the  state  shall  desire  to  enclose  any  such 
tract  of  land  for  pasturage  or  farm  pur- 
poses, and  shall  construct  a  good  and 
sufficient  fence  about  said  tract  of  land 
on  all  sides  except  along  the  side  abut- 
ting against  such  railroad,  it  shall  be 
the  duty  of  such  railroad  company  to 
construct  a  fence  not  less  than  four  and 
one-half  feet  high,  and  if  the  owner  en- 
close any  such  tract  of  land  for  pastur- 


age or  farm  purposes,  with  a  woven 
wire  fence  with  wires  crossing  each 
other  close  enough  to  keep  sheep  and 
hogs  within,  it  shall  be  the  duty  of  such 
railroad  to  construct  a  like  fence  along 
its  right  of  way  on  the  side  of  such 
tract  or  lot  so  far  as  the  same  extends 
along  the  line  of  such  railroad,  and  to 
maintain  the  same  in  good  repair  and 
condition  until  released  therefrom  by  the 
owner  of  said  tract,  or  until  the  owner  of 
said  tract  shall  have  ceased  to  maintain 
in  good  repair  and  condition  for  the 
term  of  one  year  his  portion  of  the  fence 
around  such  enclosure.  (Amended,  Feb. 
9,  1909,  Sess.  Laws  1909,  p.  13.) 

All  acts  or  parts  of  acts  in  conflict  with 
this  act  are  hereby  repealed. 

Whereas,  an  emergency  is  declared  to 
exist,  this  act  shall  take  effect  and  be 
in  force  from  and  after  its  approval. 
Approved  February  9,  1909. 
r2  South  Dakota,  Sess.  Laws  1907,  p. 
454,  §  1.  Any  coi-poration  operating  a 
railway  and  failing  to  properly  fence  the 
same  against  livestock  and  keep  the 
same  in  repair  and  maintain  proper  and 
sufficient  cattle-guards  at  all  points 
where  the  right  to  fence  or  maintain  cat- 
tle-guards exists,  shall  be  liable  to  the 
owner  of  any  stock  killed  or  injured  by 
reason  of  the  want  of  such  fence  or  cat- 
tle-guard, for  the  full  amount  of  the 
damage  sustained  by  the  owner  on  ac- 
count thereof,  unless  it  was  occasioned 
by  his  act  or  that  of  his  agent;  and  to 
recover  the  same  it  shall  only  be  neces- 
sary for  him  to  prove  the  loss  of  or 
injury  to  his  property.  If  such  corpora- 
tion fails  or  neglects  to  pay  such  dam- 
age within  sixty  days  after  notice  in 
writing  that  a  loss  or  injury  has  oc- 
curred, accompanied  by  an  affidavit 
thereof,  served  upon  any  officer  or  sta- 
tion or  ticket  agent  employed  by  said 
corporation  in  the  county  where  such 
loss  or  injury  occurred,  such  owner  shall 
be  entitled  to  recover  from  the  corpora- 
tion double  the  amount  of  damage  act- 
ually sustained  by  him.  If  such  railway 
company  shall,  within  said  sixty  days, 
offer  in  writing  to  pay  a  fixed  sum,  be- 
ing the  reasonable  market  value  of  the 
animals  so  killed,  and  the  owner  thereof 
shall  refuse  to  accept  the  same,  then  in 
any  action  thereafter  brought  for  dam- 
ages where  such  owner  recovered  a  less 
sum  as  the  value  of  the  animals  so 
killed  than  the  amount  so  offered,   then 


Ch.  CX.] 


CODE  PROVISIONS. 


151! 


such  owner  shall  recover  only  the  actual 
value  of  such  animals  and  the  railway 
company  shall  recover  its  cost  against 
such  owner.  No  law  of  the  state  or  any 
local  or  police  regulation  of  any  county, 
township,  city  or  town  relating  to  the 
restraint  of  domestic  animals,  or  in  re- 
lation to  the  fences  of  farmers  or  land- 
owners, shall  be  applicable  to  railway 
tracks,  unless  specifically  so  stated  in 
such  law  and  regulation.  Upon  depot 
grounds  necessarily  used  by  the  public 
and  the  corporation,  the  operating  of 
trains  at  a  greater  rate  of  speed  than 
eight  miles  an  hour  where  no  fence  is 
built  shall  be  negligence,  and  shall  ren- 
der such  corporation  liable  for  all  dam- 
ages occasioned  thereby  in  the  same 
manner  and  to  the  same  extent,  except 
as  to  double  damages,  as  in  cases  where 
the  right  to  fence  exists.  (Enacted  Feb. 
20,  1907.) 

s  Texas,  Art.  4528.  Each  and  every 
railroad  company  shall  be  liable  to  the 
owner  for  the  value  of  all  stock  killed  or 
injured  by  the  locomotives  and  cars  of 
such  railroad  company  in  running  over 
their  respective  railways,  which  may  be 
recovered  by  suit  before  any  court  hav- 
ing competent  jurisdiction  of  the 
amount.  If  the  railroad  company  fence 
in  their  road,  they  shall  only  then  be 
liable  in  cases  of  injury  resulting  from 
want   of   ordinary   care. 

t  Utah,  §  455x.  Every  railroad  com- 
pany operating  a  railroad  by  steam 
power  within  this  state  is  hereby  re- 
quired to  erect,  within  six  months  after 
the  approval  of  this  section  (March  12, 
1903),  and  thereafter  maintain,  a  fence 
on  each  side  of  its  railroad  where  the 
same  passes  through  lands  owned  and 
improved  by  private  owners,  and  connect 
the  same,  at  all  public  road  crossings, 
with  cattle-guards.  Such  fence  shall 
not  be  less  than  four  and  a  half  feet 
in  height  and  may  be  constructed  of 
barbed  or  other  fencing  wire  and  shall 
consist  of  not  less  than  five  wires,  with 
good,  substantial  posts  not  more  than 
one  rod  apart,  with  a  stay  midway  be- 
tween said  posts  attached  to  the  wires 
of  said  fence  to  keep  said  wires  in  place; 
and  whenever  such  railroad  company 
shall  provide  gates  for  private  crossings, 
for  the  convenience  of  the  owners  of  the 
land  through  which  such  railroad  passes, 
such  gates  shall  be  so  constructed  that 
they   may    be    easily   operated;    anr"    jiny 


such  corporation  shall  be  liable  for  all 
damages  sustained  by  the  owner  of  any 
domestic  animal  killed  or  injured  by  Btich 
railroad,  in  consequence  of  the  failure  to 
build  or  maintain  such  fence. 

ui  Washington,  §  8730.  Every  person, 
company  or  corporation  having  the  con- 
trol or  management  of  any  railroad 
shall  .within  six  months  after  the  pas- 
sage of  this  act,  outside  of  any  corpo- 
rate city  or  town,  and  outside  the  limits 
of  any  sidetrack  or  switch,  cause  to  be 
constructed  and  maintained  in  good  re- 
pair on  each  side  of  said  railroad,  along 
the  line  of  said  right  of  way  of  such  per- 
son, company  or  corporation  operating 
the  same,  a  substantial  fence,  and  at 
every  point  where  any  roadway  or  other 
public  highway  shall  cross  said  railroad, 
a  safe  and  sufficient  crossing  must  be 
built  and  maintained,  and  on  each  side 
of  such  crossing  and  at  each  end  of  such 
sidetrack  or  switch,  outside  of  any  in- 
corporated city  or  town,  a  sufficient  cat 
tie-guard:  Provided,  that  any  persr.i 
holding  land  on  both  sides  of  said  right 
of  way  shall  have  the  right  to  put  in 
gates  for  his  own  use  at  such  places  as 
may  be  convenient. 

u2  Washington,  §  S731.  Every  such 
person,  company  or  corporation  owning 
or  operating  such  railroad  shall  be  liable 
for  all  damages  sustained  in  the  injury 
or  killing  of  stock  in  any  manner  by 
reason  of  the  failure  of  such  person, 
company  or  corporation,  to  construct  and 
maintain  such  fence  or  such  crossing  or 
cattle-guard;  but  when  such  fences, 
crossings  and  guards  have  been  duly 
made,  and  shall  be  kept  in  good  repair, 
such  person,  company  or  corporation 
shall  not  be  liable  for  any  such  dam- 
ages, unless  negligently  or  unlawfully 
done. 

u3  Washington,  §  8732.  In  all  actions 
against  persons,  companies  or  corpora- 
tions, operating  steam  or  electric  rail- 
roads in  the  state  of  Washington,  for  in- 
jury to  stock  by  collision  with  moving 
trains,  it  is  prima  facie  evidence  of  neg- 
ligence on  the  part  of  such  person,  com- 
pany or  corporation,  to  show  that  the 
railroad  track  was  not  fenced  with  a 
substantial  fence  or  protected  by  a  suffi- 
cient cattle-guard  at  the  place  wrhere  the 
stock   was   injured   or  killed. 

v3  Wisconsin,  §  1810.  Every  railroad 
corporation  operating  any  railroad  shall 
erect  and  maintain  on  both  sides  of  any 


1520 


NEGLIGENCE  AT  CROSSINGS,   ETC. 


[Tit.  XIIL 


portion  of  its  road  (depot  grounds  ex- 
cepted) good  and  sufficient  fences  of  the 
height  of  four  and  a  half  feet,  with  open- 
ings or  gates  or  bars  therein,  and  suit- 
able and  convenient  farm  crossings  of 
the  road  for  the  use  of  the  occupants 
of  the  lands  adjoining,  and  shall  con- 
struct and  maintain  cattle-guards  at  all 
highway  crossings  and  connect  their 
fences  therewith  to  prevent  cattle  and 
other  domestic  animals  from  going  on 
such  railroad.  All  roads  hereafter  built 
shall  be  so  fenced  and  such  cattle- 
guards  be  made  within  three  months 
from  the  time  of  commencing  to  operate 
the  same,  so  far  as  operated.  Until 
such  fences  and  cattle-guards  shall  be 
duly  made  every  railroad  corporation 
owning  or  operating  any  such  road  shall 
be  liable  for  all  damages  done  to  cat- 
tle, horses  or  other  domestic  animals,  or 
persons  thereon,  occasioned  in  any  man- 
ner in  whole  or  in  part,  by  the  want  of 
such  fences  or  cattle-guards;  but  after 
such  fences  and  cattle-guards  shall  have 
been  in  good  faith  constructed  such  lia- 
bility shall  not  extend  to  damages  oc- 
casioned in  part  by  contributory  negli- 
gence nor  to  defects  existing  without 
negligence  on  the  part  of  the  corpora- 
tion or  its  agents.  A  barbed  wire  fence 
consisting  of  not  less  than  five  barbed 
wires,  with  at  least  forty  barbs  to  the 
rod,  firmly  fastened  to  posts,  well  set, 
not  more  than  sixteen  and  one-half  feet 
apart,  with  one  good  stay  between,  the 
top  wire  not  less  than  forty- eight  inches 
high  and  the  bottom  wire  riot  more  than 
eight  inches  from  the  ground,  and  the 
spaces  between  the  bottom  and  second 
and  second  and  third  wires  from  the 
ground  not  more  than  eight  inches  each 
shall  be  deemed  a  good  and  sufficient 
fence;  and  no  fence  shall  be  required  in 
places  where  the  proximity  of  ponds, 
lakes,  watercourses,  ditches,  hills,  em- 
bankments or  other  sufficient  protection 
renders  a  fence  unnecessary  to  protect 
cattle  or  other  domestic  animals  from 
straying  upon  the  right  of  way  or  track; 
provided,  that  nothing  herein  shall  af- 
fect or  render  unlawful  any  fence  built 
by  any  railroad  company  prior  to  the 
thirtieth  day  of  March,  1881. 

v2  Wisconsin,  §  1812.  Whenever  a  rail- 
road corporation  is  required  by  law  to 
fence  its  track  or  railroad  or  to  main- 
tain or  keep  in  repair  any  such  fence 
and   shall   neglect   or  refuse   to    build   or 


build  or  repair  such  fence,  as  the  case- 
may  be,  the  owner  or  occupant  of  the 
land  adjoining  such  railroad  or  over  or 
through  which  the  said  railroad  track 
shall  or  may  be  laid  may,  between  the- 
first  day  of  April  and  the  first  day  of 
October  next  succeeding,  give  notice  in 
writing  to  such  corporation  to  build, 
within  sixty  days  or  repair  within  thirty 
days,  such  fence,  as  the  case  may  be, 
after  the  service  of  such  notice.  Such 
notice  shall  describe  the  land  on  which 
such  fence  is  required  to  be  built  or  re- 
paired, and  service  thereof  may  be  made 
by  delivering  the  same  to  any  station 
agent  of  said  corporation.  In  case  the 
corporation  or  agent  so  notified  shall  re- 
fuse or  neglect  to  build  or  repair  the 
fences  on  the  land  described  in  such  no- 
tice within  the  time  aforesaid,  then  such 
owner  or  occupant  may  build  or  repair 
the  same,  as  the  case  may  be;  and  may 
recover  by  action  from  such  corporation 
the  cost  thereof  with  interest  at  one  per 
cent  per  month  from  the  time  such  fence 
shall  have  been  built  or  repaired. 

v3  Wisconsin,  §  1813.  1.  Whenever  any 
railroad  corporation  shall  operate  a  rail- 
road over  or  through  enclosed  lands  and 
shall  fail  to  construct  the  fences,  farm 
crossings  or  cattle-guards  required  by 
section  1810,  proper  for  the  use  of  such 
lands,  the  owner  or  occupant  thereof 
may  give  notice  in  writing  signed  by  him 
to  such  corporation,  to  be  served  as  a 
summons  in  a  court  of  record  is  required 
to  be  served  on  such  corporation,  to- 
fence  its  road  so  running  through  his  en- 
closed lands,  describing  the  same,  and 
construct  the  necessary  farm  crossings 
and  cattle-guards  thereon. 

2.  If  such  company,  after  being  so- 
notified,  neglect  for  three  months  so  to 
construct  such  fences,  farm  crossings 
and  cattle-guards,  it  shall  be  liable  to 
pay  to  such  owner  or  occupant  ten  dol- 
lars for  each  *  *  *  <jay  after  the 
expiration  of  said  three  months  until  so 
constructed. 

3.  But  no  time  between  any  first  day 
of  November  and  the  first  day  of  April 
next  succeeding  shall  be  included  in  the 
three  months  aforesaid.  (Amended  July 
13,  1907,  Laws  1907,  p.  495.) 

wi  Wyoming,  §  3213.  Any  corporation 
operating  a  railway,  or  railroad,  within 
this  state,  which  shall  injure  or  kill  any 
livestock,  by  running  any  engine  or  en- 
gines,  car  or  cars,   over  or  against   anji 


<Ch.  CX.] 


COMPLAINTS  [OR  PETITIONS].— FORMS. 


1521 


such  livestock,  shall  be  liable  to  the 
owner  or  owners  of  such  livestock,  for 
the  damage  sustained  by  such  owner  or 
owners,  by  reason  of  such  injury  or  kill- 
ing of  such  livestock. 

w2  Wyoming,  Sess.  Laws  1907,  p.  136, 
§  1.  AH  railway  corporations,  owning  or 
operating  a  line  of  railway  within  the 
state,  shall  construct,  maintain  and  keep 
in  repair  on  each  side  of  the  track 
thereof,  a  sufficient  fence,  so  connected 
with  suitable  cattle-guards  at  all  public 
•crossings  as  to  prevent  stock  from  get- 
ting on  the  railroad  track  of  said  corpo- 
ration, and  such  fence  when  of  barb 
■wire  to  consist  of  four  wires  securely 
fastened  to  posts  set  not  more  than 
thirty-two  feet  apart,  with  stays  not 
more  than  ten  feet  apart.  Such  fence 
shall  be  constructed  within  nine  months 
after  the  completion  of  any  railroad  track 
or  any  part  thereof,  and  in  the  case  of 
railroads  now  constructed  and  in  opera- 
tion, within  three  months  after  the  ap- 
proval of  this  act.  Provided,  that  rail- 
way corporations  shall  not  be  required  to 
construct   and   maintain   a   fence    within 


the  boundaries  of  any  incorporated   city 
or  town.     (Enacted  Feb.  18,  1907.) 

w3  Wyoming,  Sess.  Laws  1907,  p.  13C. 
|  2.  Any  corporation  operating  a  railway 
and  failing  to  fence  the  same  and  to 
construct  and  maintain  suitable  cattle- 
guards  as  required  by  Section  1  hereof, 
shall  be  liable  to  the  owner  or  owners  of 
any  livestock  killed  or  injured  by  rea- 
son of  its  failure  to  construct  or  keep  in 
repair  such  fence  or  cattle-guard  in  the 
manner  provided  in  this  act,  for  the  full 
amount  of  the  damage  sustained  by  the 
owner  on  account  thereof  and  to  make  a 
prima  facie  case  for  recovery,  it  shall 
only  be  necessary  for  such  owner  to 
prove  the  loss  or  injury  to  his  property: 
provided,  that  no  corporation  operating 
a  railroad  shall  be  liable  for  any  dam- 
age occasioned  by  the  wilful  act  of  the 
owner  or  of  his  agent  or  employees  or  for 
stock  killed  or  injured  on  public  road 
crossings  unless  negligence  on  the  part 
of  such  corporation,  its  agents,  servants 
or  employees  can  be  shown.  (Enacted 
Feb.  18,  1907.) 


§382.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  909 — For  damages  for  negligence  of  street   railway  company  at 
street-crossing. 

(In  Brown  v.  Los  Angeles  R.  Co.,  2  Cal.  App.  618;  81  Pac.  362.) 

[Title  of  court  and  cause.] 

Plaintiff,  for  cause  of  action  against  the  defendant,  alleges  : 

1.  That  at  all  the  times  mentioned  herein  the  defendant  was,  and 
it  yet  is,  a  corporation  organized  and  existing  under  and  in  pursu- 
ance of  the  laws  of  the  state  of  California,  and  defendant  at  all  said 
times  was  the  owner  of,  and  engaged  in  operating,  that  certain  street 
railway  in  the  city  of  Los  Angeles,  California,  in  Flower  Street  in 
said  city,  from  Tenth  Street  south,  having  its  track  across  Twelfth 
Street,  and  at  all  said  times  said  defendant  operated  cars  on  said  rail- 
way by  means  of  electric  power. 

2.  That  on  or  about  the  12th  day  of  September,  1903,  while  this 
plaintiff  was  crossing  said  Flower  Street  at  the  junction  of  the  same 
with  Twelfth  Street,  the  plaintiff  was  driving  one  horse  attached  to 
a  buggy  in  which  he  was  riding,  and  in  the  rear  of  said  buggy,  and 
attached  thereto,  he  had  a  hack,  and  in  the  rear  of  said  hack,  and 
attached  thereto,  a  wagon  called  a  runabout,  all  of  which  said  car- 


1522  NEGLIGENCE  AT  CROSSINGS,  ETC.  [Tit.  XIII. 

riages  he  was  moving  east  on  Twelfth  Street,  and  while  he  was  so 
doing,  the  defendant,  without  the  exercise  of  any  care,  and  by  reason 
of  its  negligence,  caused  one  of  defendant's  cars  to  come  in  collision 
with  the  hack  so  being  drawn  by  plaintiff,  thereby  throwing  plaintiff 
from  his  said  buggy  upon  the  ground,  and  causing  his  said  horse  to 
become  frightened  and  to  drag  plaintiff  on  the  ground  for  a  great 
distance  and  to  inflict  upon  plaintiff  the  following  personal  injuries., 
to  wit :    [Here  injuries  are  described.] 

3.  That  by  reason  of  the  personal  injuries  so  sustained  by  plaintiff 
as  hereinbefore  alleged  plaintiff  has  sustained  damage  in  the  sum  of 
$20,000. 

Wherefore,  plaintiff  asks  judgment  against  defendant  for  the  sum 
of  $20,000,  and  for  costs  of  this  suit. 

Waters  &  Wylie, 

[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  910— For  damages  for  negligence  of  steam   railroad  company  at 

crossing. 
(In  Missouri  Pacific  R.  Co.  v.  Johnson,  44  Kan.  660;  24  Pac.  1116.) 

[Title  of  court  and  cause.] 

[Introductory  part,  and  after  averment  of  defendant's  incorpora- 
tion :] 

That  on  the  3d  day  of  April,  1887,  the  defendant  was  operating  a 
certain  line  of  railroad  through  the  county  of  AVilson,  state  of  Kan- 
sas, known  as  the  Verdigris  Valley,  Independence,  and  Western  Rail- 
road, which  said  railroad,  so  operated  by  defendant,  runs  across  a 
certain  highway,  which  said  highway  was  duly  and  legally  laid  out 
and  traveled  prior  to  the  construction  of  said  railroad;  that  where 
said  railroad  crossed  said  public  highway,  and  prior  to  the  construc- 
tion of  said  railroad,  the  ground  was  smooth  and  level ;  that  in  con- 
structing said  railroad  an  embankment  some  six  feet  high  was 
thrown  up  by  the  defendant  company,  upon  which  it  constructed  its 
said  road ;  that  the  defendant  negligently  and  carelessly  constructed 
approaches  to  said  crossing,  which  were  narrow,  steep,  and  unsafe, 
and  have  failed  to  restore  said  public  highway  to  its  former  condi- 
tion, or  to  such  condition  as  did  not  materially  impair  its  usefulness ; 
that  the  approach  to  the  railroad  by  the  public  highway  was  ob- 
structed by  a  high  hedge  along  the  north  side  of  the  highway,  so  it 
was  impossible  for  any  person  using  the  highway  to  observe  a  train 


Cli.  CX.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  152:* 

or  other  object  from  the  hedge;  that  where  the  railroad  passes 
through  the  hedge  fence  an  opening  was  cut  for  a  distance  of  eighty- 
feet  in  width,  and,  aside  from  this  opening,  this  hedge  fence  grew 
upon  the  north  side  of  the  highway  a  distance  of  half  a  mile,  and  a 
distance  of  a  quarter  of  a  mile  on  each  side  of  the  railroad  track, 
which  rendered  said  crossing  very  dangerous,  unless  a  great  deal  of 
care  was  exercised  upon  the  part  of  the  railway  company  in  operating 
the  road ;  that  on  the  3d  day  of  April,  1887,  the  plaintiff  was  travel- 
ing upon  said  highway  in  a  wagon  drawn  by  two  mules,  going  in  an 
easterly  direction ;  that  said  railroad,  by  reason  of  said  hedge  f ence,. 
was  entirely  obstructed  from  view  of  the  plaintiff  north  of  the  cross- 
ing; that  the  plaintiff,  knowing  the  dangerous  condition  of  said 
crossing,  approached  the  same  with  great  care,  intending  to  stop,, 
look,  and  listen  for  an  approaching  train,  but  upon  approaching  said 
crossing,  and  before  she  could  get  a  view  of  said  track,  defendant,  its 
agents  and  servants,  ran  one  of  its  trains  of  cars  drawn  by  a  locomo- 
tive engine  down  said  track  in  a  southeasterly  direction,  and  over 
said  crossing,  which  said  train  passed  directly  in  front  of  the  mules 
driven  by  plaintiff's  husband,  and  caused  them  to  jump  from  the 
narrow  approach  to  said  crossing,  down  an  embankment  a  distance  of 
six  feet,  carrying  with  them  the  wagon  in  which  plaintiff  was  then 
sitting;  that  by  reason  of  the  premises  the  plaintiff  was  thrown  out 
of  said  wagon,  down  said  embankment,  striking  a  post  upon  the  side 
of  the  highway,  then  dragged  by  said  team  a  distance  of  eighteen 
feet,  and  was  mangled,  bruised,  and  injured. 

Plaintiff  avers  that  defendant  neglected  and  failed  to  sound  the 
whistle  of  said  locomotive  engine  eighty  rods  before  approaching 
said  crossing,  by  reason  whereof  she  was  not  warned  of  said  ap- 
proaching train  until  the  same  passed  over  the  crossing  immediately 
in  front  of  the  mules  driven  by  her  husband;  that  had  defendant's 
agents  and  servants  sounded  said  whistle,  as  it  was  their  duty  to  do, 
eighty  rods  before  approaching  said  crossing,  she  would  have  heard 
the  same  and  averted  the  accident. 

[Prayer,  etc.] 

S.  S.  Kirkpatrick, 
Attorney  for  plaintiff. 


1524  NEGLIGENCE  AT  CROSSINGS,  ETC.  [Tit.  XIII. 

FORM   No.  911 — By  pedestrian  for  damages  for  personal  injuries  caused  by 
the  negligence  of  a  railroad  company. 

(In  Cotner  v.  St.  Louis  etc.  R.  Co.,  220  Mo.  284;  119  S.  W.  610.) 

[Title  of  court  and  cause.] 

[After  formal  parts,  and  statement  as  to  the  incorporation  of  the 
defendant  company,  the  petition  proceeds  as  follows:] 

That  on  November  4,  1904,  while  he,  the  plaintiff,  was  walking 
northeastward  on  the  railroad  tracks  of  the  defendant,  Avithin  the 
village  limits  of  the  village  of  Steele,  in  Pemiscot  County,  Missouri, 
an  incorporated  village,  duly  incorporated  under  the  laws  of  Mis- 
souri, where  the  track  was  level  and  straight  for  a  long  distance,  and 
where,  from  the  time  of  its  construction,  pedestrians  had  been  accus- 
tomed to  use  the  same  as  a  footpath,  by  the  forbearance  and  tacit 
consent  of  the  defendant,  plaintiff,  by  reason  of  the  carelessness, 
negligence,  and  recklessness  of  defendant's  agents,  servants,  and 
employees  in  charge  of  its  train,  was  run  over  and  injured. 

2.  That  the  defendant's  agents,  servants,  and  employees  in  charge 
of  said  train,  saw,  or  by  the  exercise  of  reasonable  care  and  diligence, 
and  had  they  not  been  reckless  in  operating  said  train  at  a  late  hour 
in  the  night-time,  to  wit,  about  11  o'clock  P.  M.,  without  a  headlight 
lighted  upon  the  front  part  of  its  engine  or  train  of  cars,  could  have 
seen,  the  dangerous  position  in  which  plaintiff  was  situated;  and 
saw,  or  by  reasonable  care  and  diligence,  if  said  train  had  not  been 
recklessly  operated  by  them,  could  have  seen,  the  imminent  peril  in 
which  plaintiff  was  placed. 

3.  That  plaintiff  was  unaware  of  the  dangerous  approach  of  said 
train,  and  defendant  failed  to  sound  the  bell  and  ordinary  signals  in 
time  to  avert  the  injuries  herein  complained  of,  and  in  fact  did  not  at 
any  time  before  said  time  either  ring  a  bell  or  sound  a  whistle, 
or  give  any  other  signal  by  which  the  plaintiff  might  be  warned  of 
the  near  or  dangerous  approach  of  said  train,  and  negligently  failed 
to  use  the  brakes  and  other  appliances  provided  for  the  stopping  of 
said  train,  made  up  as  aforesaid,  and  negligently  failed  to  use  the 
appliances  at  hand  for  the  stopping  of  the  same  before  it  struck  and 
injured  plaintiff,  but,  on  the  contrary,  recklessly,  negligently,  and 
wantonly  ran  its  engine  and  train  of  cars  against,  upon,  and  over 
plaintiff,  thereby  crushing  his  right  foot  and  ankle,  necessitating 
amputation  of  the  right  foot  and  leg,  [etc.,  here  specifying  other 
injuries  inflicted  upon  plaintiff]. 


Ch.CX.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1525 

That  by  reason  of  the  injuries  aforesaid  plaintiff  is  permanently- 
disabled,  to  his  damage  in  the  sum  of  $15,000.  And  plaintiff  further 
states  that  by  reason  of  the  aforesaid  injuries  he  has  suffered  great 
distress  of  body  and  mind,  pain,  and  mental  anguish,  and  has  been 
caused  to  expend  large  sums  of  money  for  care  and  medical  atten- 
tion to  the  amount  of  $3,000. 

Wherefore,  plaintiff  prays  judgment  for  the  sum  of  $18,000  [etc.]. 

FORM  No.  912 — Averment  of  petition  for  injuries  to  stock  caused  by  neglect 
of  railroad  company  to  fence  its  road,  as  required  by  gen- 
eral statute. 

(In  Missouri  Pacific  R.  Co.  v.  Metzger,  24  Neb.  90;  38  N.  W.  27.) 

[Title  of  court  and  cause.] 

[After  averring  incorporation  of  defendant,  ownership  and  opera- 
tion of  lines,  etc. :] 

That  at  a  point  on  its  line  of  railway,  not  within  the  incorporated 
limits  of  any  city,  village,  or  town,  or  on  any  public  highway,  and  at 
a  point  where  it  was  the  duty  of  the  defendant  company  by  force  of 
the  statute  to  erect  and  maintain  a  suitable  and  sufficient  fence  upon 
the  sides  of  the  defendant's  railroad  to  prevent  horses  from  getting 
upon  said  railroad,  to  wit,  [here  described  by  reference  to  some 
road-crossing  or  land,  etc.],  carelessly  and  wrongfully  did  neglect 
and  fail  to  erect  and  maintain  a  suitable  and  sufficient  fence  as  by  law 
required  for  said  purpose;  that  by  reason  of  the  said  neglect  and 
failure  of  defendant  company,  its  agents,  servants,  [etc.,]  the  horses 
aforesaid,  the  property  of  plaintiff,  strayed  in  and  upon  the  track  and 
right  of  way  of  the  defendant,  and  while  so  upon  said  railroad  they 
were,  and  each  of  them  was,  then  and  there  struck  and  run  over  by 
the  locomotive  and  train  of  the  defendant  and  killed. 

[Followed  with  averments  as  to  damages  thereby  sustained,  etc.] 

[Concluding  part.] 

FORM  No.  913 — Against  railroad  company,  for  damages  for  the  wanton  kill- 
ing of  stock. 

(In  Missouri  Pacific  R.  Co.  v.  Vandeventer,  28  Neb.  112;  44  N.  W.  93.) 

[Title  of  court  and  cause.] 

That  plaintiff  is  a  corporation  owning,  operating,  and  managing  a 
line  of  railroad  through  Richardson  County,  in  this  state,  and  that  on 
the  4th  day  of  February,  1886,  while  so  operating  said  road,  and  at  a 

Jury's  PL— 97. 


1526  NEGLIGENCE  AT  CROSSINGS,  ETC.  [Tit.  XIII 

point  thereon  between  the  village  of  V.  and  the  village  of  S.,  and  at  a 
point  on  said  road  where  it  was  the  duty  of  the  defendant  to  keep  its 
track  fenced,  defendant  had  constructed  a  gate  for  a  private  cross- 
ing over  and  upon  said  track,  but  had  carelessly  and  negligently 
allowed  said  gate  to  remain  unfastened,  unsecured,  and  open,  so  as 
to  allow  free  ingress  and  egress  to  and  from  said  track ;  that  during 
the  night  preceding  said  day,  without  the  knowledge,  fault,  or  negli- 
gence of  the  plaintiff,  three  horses,  the  property  of  plaintiff,  broke 
out  of  his  enclosure,  escaped  from  his  premises,  and  passed  through 
the  said  open  gate  onto  the  track  of  defendant,  where  defendant,  by 
its  agents  and  employees,  ran  an  engine  and  train  of  cars  over  and 
upon  said  horses,  and  killed  the  same,  to  the  damage  of  the  plaintiff 
in  the  sum  of  $335. 

That  said  horses  were  upon  the  track  of  defendant  in  plain  view  of 
its  agents  and  employees  engaged  in  running  said  train,  which  was 
moving  at  a  very  rapid  rate  of  speed ;  that  said  agents  and  employees 
negligently,  wilfully,  and  intentionally  ran  over  and  upon  said  horses. 

That  due  notice  of  said  loss  was  given  to  defendant  by  plaintiff 
prior  to  bringing  this  suit. 

Wherefore  [etc.]. 

A.  B.,  Attorney  for  plaintiff. 

§383.     ANSWERS. 

FORM   No.  914 — Defense  based  upon  duty  of  the  plaintiff  to  make  [or  main- 
tain] cattle-fences. 

[Title  of  court  and  cause.] 

[After  introductory  part,  and  appropriate  denials:] 

For  a  separate  defense  defendant  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  defendant  company 
paid  to  the  plaintiff  the  sum  of  $  ,  a  price  agreed  upon  with 
the  plaintiff  [or  that  the  same  was  allowed  upon  an  award  for  dam- 
ages for  defendant's  right  of  way  over  plaintiff's  land],  for  making 
[or  maintaining]  the  fence  bordering  the  said  lands  of  plaintiff  and 
the  said  tracks  of  defendant ;  that  it  thereby  became  the  duty  of  the 
plaintiff  to  make  [or  maintain]  said  fence  and  keep  the  same  in 
repair. 

2.  That  plaintiff  has  not  constructed  [or  maintained]  said  fence, 
and,  therefore,  if  plaintiff  has  suffered  any  damages  by  reason  of  the 
cattle  of  plaintiff  straying  upon  the  tracks  of  defendant,  such  dam- 


Ch.  CX.]  ANSWERS.— FORMS.  1527 

ages  have  resulted  proximately  from  plaintiff's  own  negligence,  and 
not  from  any  negligence  of  the  defendant. 
[Concluding  part.] 

FORM  No.  915 — Defense  based  upon  trespass  by  animals. — Action  for  in- 
juries to  stock,  alleged  to  have  been  killed  while  on 
defendant's  track. 

(In  Missouri  Pacific  R.  Co.  v.  Metzger,  24  Neb.  90;  38  N.  W.  27.) 

[Title  of  court  and  cause.] 

[After  introductory  part :] 

That  at  the  point  where  the  horses  described  in  the  petition  of 
plaintiff  got  upon  the  defendant's  track  the  defendant  had  erected  a 
fence  on  each  side  of  said  track,  and  thereafter  maintained  said  fence 
amply  sufficient  to  prevent  horses  from  getting  upon  said  track  at 
said  point,  and  had  also  constructed  and  built  gates  at  farm  cross- 
ings at  said  point  as  required  by  the  law  of  the  state  as  to  fencing  its 
tracks  and  erecting  gates  at  farm  crossings;  that  plaintiff's  horses 
trespassed  upon  the  premises  of  the  adjoining  proprietor,  upon  whose 
premises  a  private  farm-gate  had  been  erected  by  defendant,  which 
gate  was  under  the  control  of  the  owner  of  said  land,  and,' without 
any  fault  of  defendant,  its  agents  or  servants,  said  gate  had  been 
left  open,  and  through  which  open  gate  plaintiff's  horses  escaped, 
and  thereby  got  upon  defendant's  track,  and  were  injured  [etc.]. 

[Concluding  part.] 

For  the  substance  of  a  complaint  in  an  action  for  damages  for  personal  injuries 
against  a  street  railway  company,  the  plaintiff  being  a  guest  in  a  wagon  which 
was  run  into  by  a  car  belonging  to  the  defendant,  see  Philbin  v.  Denver  City 
Tramway  Co.,  36  Colo.  331,  85  Pac.  630,  631. 

Forms  of  complaints  [or  petitions]  in  actions  for  damages  caused  by  the  destruc- 
tion of  certain  property  by  fire  from  locomotives,  etc.:  Jewett  v.  Osborne,  33  Neb. 
24,  26,  49  N.  W.  774,  775;  Missouri  Pacific  R.  Co.  v.  Merrill,  40  Kan.  404,  19  Pac.  793; 
Koontz  v.  Oregon  R.  &  N.  Co.,  20  Ore.  3,  8,  23  Pac.  820. 

Form  of  answer  in  an  action  against  a  railroad  company  to  recover  damages 
caused  by  fire  alleged  to  have  been  communicated  by  an  engine,  the  property  of 
plaintiff:    Missouri  Pacific  R.  Co.  v.  Cornell,  30  Kan.  35,  36,  1  Pac.  312,  313. 

Form  of  motion  to  make  more  definite  and  certain:  Fort  Scott  etc.  R.  Co.  v. 
Tubbs,  47  Kan.  630,  631,  28  Pac.  612,  613,  (for  damages  by  fire  caused  by  alleged 
negligence  of  defendant). 

Form  of  instructions  to  the  jury  in  an  action  for  damages  caused  by  fire  set  by 
sparks  from  a  locomotive:  St.  Louis  etc.  R.  Co.  v.  Hoover,  3  Kan.  App.  577,  43  Pac. 
854,  855. 

For  forms  in  actions  based  upon  the  liability  of  common  carriers  of  property,  see 
chapter  CVII. 

For  defenses  generally  in  actions  for  negligence  in  miscellaneous  cases,  see 
chapter  CXI,   forms  928-930. 


1528  NEGLIGENCE  AT  CROSSINGS,  ETC.  [Tit.  XIII. 

8  384.     ANNOTATIONS. 

Duties  and  obligations  of  common  carriers. — The  following  principles  in  reference 
to  the  duties  and  obligations  of  common  carriers  have  been  recently  expressed  in  a 
decision  in  which  a  great  number  of  cases  bearing  upon  the  points  have  been 
exhaustively  reviewed.  This  statement  of  principles  deduced  from  the  cases  may 
aid  in  determining  the  questions  which  must  arise  in  the  bringing  of  actions  against 
common  carriers  as  to  the  correlative  rights  and  duties  between  the  public  and 
such  common  carriers.  The  propositions  which  seem  to  be  the  best-settled  law,  in 
the  absence  of  any  countervailing  statute,  are  thus  expressed  by  Justice  Frick  of 
the  supreme  court  of  Utah:  "(1)  A  railroad  company  in  country  districts,  except  at 
crossings,  owes  no  active  duty  to  keep  a  lookout  for  trespassers  who  may  intrude 
upon  its  track,  and  it  need  not  anticipate  their  presence  there.  (2)  That  it  owes 
no  duty  to  such  trespasser,  old  or  young,  until  he  is  actually  discovered  in  a  place 
of  danger;  and,  in  case  of  an  aauit,  is  not  liable  for  injuring  him  unless  such  injury 
is  inflicted  wilfully  or  recklessly  after  his  danger  is  discovered,  or  in  case  his  posi- 
tion is  so  prominent  and  conspicuous  that  it  would  amount  to  wilfulness  or  reck- 
lessness not  to  discover  him  and  avoid  injury;  that  in  case  of  infants  or  helpless 
beings,  while  there  is  no  active  duty  required  to  discover  them,  yet,  when  they  are 
discovered,  or  where  their  position  is  such  that  it  would  amount  to  wilfulness  or 
recklessness  not  to  discover  their  danger,  it  is  the  duty  of  the  railroad  company 
after  such  discovery  to  exercise  all  reasonable  care,  in  view  of  the  conditions  and 
circumstances,  to  avoid  injuring  them.  (3)  That  a  railroad  company  owes  the 
active  duty  of  exercising  ordinary  care  not  to  injure  persons  who  are  on  or  near  the 
track  at  places  in  thickly  settled  portions  of  cities,  towns,  and  villages  where  per- 
sons have  free  access  to  the  tracks,  and  at  all  other  places  where  the  public  in  any 
considerable  numbers  habitually  have  passed  over  or  along  the  track  for  a  consid- 
erable period  of  time,  so  as  to  impart  notice  of  their  use  of  the  track  to  the  com- 
pany, or  where  the  company  expressly  or  impliedly  permits  persons  to  pass  along  or 
across  the  track  at  a  particular  place  or  places  for  a  considerable  period  of  time. 
(4)  That  when  the  facts  are  not  in  dispute,  or  where  all  the  facts  and  inferences 
that  may  be  deduced  from  them  show  that  the  intrusion  in  question  did  constitute 
a  trespass  if  committed  upon  real  estate  generally,  then  the  question  is  one  of  law, 
although  the  trespass  or  intrusion  was  upon  a  railroad  track.  In  other  words,  if  an 
intrusion  upon  real  property  would  be  pronounced  a  trespass  as  a  matter  of  law,  it 
will  likewise  be  so  pronounced  if  committed  on  a  railroad  track,  and  the  court  must 
say,  as  a  matter  of  law,  what  duty  is  imposed  upon  the  owner  of  the  real  estate  or 
the  railroad  company  in  such  a  case":  Palmer  v.  Oregon  S.  L.  Co.,  34  Utah  466,  98 
Pac.  689,  702. 

Rule  as  to  right  over  street  railway  crossings. — The  rights  of  persons  using 
vehicles  and  horses  on  the  streets  of  a  city,  and  street  railway  companies  operating 
cars  on  the  same  streets,  are  mutual,  and  such  persons  and  companies  are  required 
lo  use  ordinary  care  and  diligence  to  avoid  collisions  with  each  other.  It  is  not 
negligence  for  a  person  to  drive  across  street  railway  tracks  wherever  and  whenever 
he  may  have  occasion  to  do  so,  and  this  right  of  crossing  the  tracks  is  not  confined 
to  street-cars.  The  question  of  negligence  in  such  cases  depends  upon  the  proxim- 
ity or  remoteness  of  the  car,  its  speed,  and  other  circumstances.  It  is  the  duty  of  a 
traveler  to  look  out  for  himself,  and  to  exercise  such  ordinary  care  as  would  be  exer- 
cised by  a  reasonably  prudent  person  under  attendant  circumstances.  The  duty 
imposed  upon  persons  crossing  steam  railway  tracks  to  stop,  to  look,  and  to  listen  is 
not  rigidly  applied  to  persons  traveling  a  street  used  by  a  street  railway:  Philbin  v. 
Denver  City  Tramway  Co.,  36  Colo.  331,  85  Pac.  630,  631,  (for  damages  for  personal 
injuries  caused  by  negligence  of  street  railway  company). 

When  plaintiff  may  recover  notwithstanding  his  own  negligence. — Plaintiff,  though 
guilty  of  negligence,  may  still  recover,  if  after  the  discovery  of  his  peril  the  defend- 
ant fails  to  exercise  ordinary  care  to  prevent  the  injury,  if  in  fact  such  failure  of 
defendant  was  its  proximate  or  direct  cause,  and  if  the  defendant  was  also  guilty  of 


Ch.  CXI.]  ANNOTATIONS,  ETC.  1529 

■uch  conduct  as  implied  an  intent  or  willingness  to  cause  the  Injury:  Denver  etc.  R. 
Co.  T.  Buffehr,  30  Colo.  27,  69  Pac.  582,  585,  (alleged  wilful  negligence  of  railway 
company);  Chicago  etc.  R.  Co.  V.  Crisman,  19  Colo.  30,  34  Pac.  286,  287;  Denver  etc. 
Rapid  Transit  Co.  v.  Dwyer,  20  Colo.  132,  36  Pac.  1106,  1108,  (negligence  of  street 
railroad  company  operating  steam  motors). 

If  a  motorman  sees,  or  by  the  exercise  of  ordinary  care  and  diligence  would  have 
seen,  a  person  or  vehicle  ahead  of  his  car,  and  through  his  careless  or  negligent 
failure  to  apply  such  means  as  the  exigencies  of  the  case  required  to  stop  the  car,  a 
collision  occurs,  the  company  will  be  liable  for  the  damages  occasioned  thereby: 
Philbin  v.  Denver  City  Tramway  Co.,  36  Colo.  331,  85  Pac.  630,  632,  (to  recover  dam- 
ages for  personal  injuries  caused  by  negligence  of  street  railway  company);  citing 
Davidson  v.  Tramway  Co.,  4  Colo.  App.  283,  35  Pac.  920,  (alleged  negligence  of  street 
railway  company — contributory  negligence  of  defendant);  Clark  v.  Bennett,  123  Cal. 
275,  278,  55  Pac.  908,  (negligence  of  street  railway  company);  Denver  etc.  R.  Co.  v. 
Buffehr,  30  Colo.  27,  69  Pac.  582,  585,  (negligence  of  steam  railway  company). 


CHAPTER   CXI. 

Miscellaneous  Cases  of  Negligence. 

Page 

§  385.  Code    provisions     1530 

§  386.  Complaints   [or  petitions]    1530 

Form  No.  916.  For  negligent  maintenance  of  electric-light 
plant  and  system  of  wires  connected  there- 
with    1530 

Form  No.  917.  For  damages  caused  by  negligent  breaking  of 

a  plate-glass  window  1532 

Form  No.  918.  For  damages  for  personal  injuries. — Negligence 

in  maintaining  excavation  in  highway 1532 

Form  No.  919.  For  negligently  managing  artificial  waterway.  1533 

Form  No.  920.  For  negligently  causing  fire 1534 

Form  No.  921.  For  negligent  navigation  of  boat 1534 

Form  No.  922.  For  injuries  to  sheep  caused  by  ferocious  dog  1534 
Form  No.  923.  By    guardian    ad    litem,    for    damages    against 

owners  of  vicious  animal  1535 

Form  No.  924.  By  next  friend,  for  damages  for  personal  in- 
juries caused  by  negligent  shooting 1537 

Form  No.  925.  For  damages  caused  by  waters  from  roof 1538 

Form  No.  926.  For  damages  caused  by  falling  snow  and  ice..  1538 
Form  No.  927.  For  negligent  collision  with  carriage  [or  auto- 
mobile]    1539 

S  387.  Answers 1539 

Form  No.  928.  Defense  alleging  plaintiff's  own  negligence 1539 

Form  No.  929.  Denial  of  defendant's  ownership  of  the  thing 

causing  injury   1539 

Form  No.  930.  Denial  of  plaintiff's  ownership  of  thing  injured 

or  destroyed  1540 

B  388.  Annotations 1540 


1530  NEGLIGENCE— MISCELLANEOUS.  [Tit.  XIII. 

§385.     CODE  PROVISIONS. 

Negligence — Liability  in  general. 

California,  §  1714.  Every  one  is  responsible,  not  only  for  the 
result  of  his  wilful  acts,  but  also  for  an  injury  occasioned  to  another 
by  his  want  of  ordinary  care  or  skill  in  the  management  of  his  prop- 
erty or  person,  except  so  far  as  the  latter  has,  wilfully  or  by  want 
of  ordinary  care,  brought  the  injury  upon  himself.  The  extent  of 
liability  in  such  cases  is  defined  by  the  title  on  compensatory  relief. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5077.     North  Dakota,  Rev.  Codes  1905,  §  5392. 
Oklahoma,   Rev.   and   Ann.    Stats.    1903    (Wilson),    §839;    Comp.   Laws    1909 
(Snyder),  §1149.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §1297. 

§386.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  916 — For  negligent  maintenance  of  electric-light  plant  and  system 
of  wires  connected  therewith. 

(In  Younie  v.  Blackfoot  L.  &  W.  Co.,  15  Idaho  56;  96  Pac.  193.) 

[Title  of  court  and  cause.] 

[After  introductory  part,  alleging  incorporation  of  defendant  com- 
pany, description  and  ownership  of  plant,  operation  of  the  same, 
etc.,  the  complaint  sets  forth  the  particular  acts  of  negligence  as 
follows:] 

1.  That  defendant,  in  conducting  its  electric-light  and  electric- 
power  business,  had  erected  a  receiving  and  distributing  plant,  and 
had  strung  poles  along  the  streets  and  alleys  of  the  village  of 
Blackfoot,  and  strung  along  the  said  poles  a  system  of  wires,  appur- 
tenances, and  appliances  charged  with  a  dangerous  and  life-destroy- 
ing force  and  current,  known  as  electricity;  that  in  January,  1895, 
the  defendant  corporation,  its  agents,  servants,  and  employees,  neg- 
ligently and  carelessly  constructed  a  system  of  wires  and  electric 
lights  in  plaintiff's  livery  barn  in  said  village,  for  the  purpose  of 
lighting  said  barn,  and  negligently  and  carelessly  attached  said  sys- 
tem of  wires  and  lights  to  said  defendant's  wires,  strung  along  the 
streets  of  said  village,  and  negligently  and  carelessly  failed  to  exer- 
cise and  use  proper  care,  diligence,  and  skill  in  putting  up  said  plant 
and  selecting  material  therefor,  and  in  operating,  inspecting,  and 
maintaining  its  plant,  wires,  and  other  appurtenances  and  appliances 


Ch.  CXI.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1531 

and  system  of  wires  connected  therewith,  and  dangerously  and  neg- 
ligently constructed  and  put  into  said  plaintiff's  livery  barn  said 
dangerous  and  defective  system  of  wires,  without  proper  fuses,  or 
without  having  the  wire  therein  properly  insulated,  attached,  and 
fastened,  and  represented  to  plaintiff  that  said  system  of  wires  so 
constructed  in  said  livery  barn  was  safely  and  properly  put  in  and 
constructed. 

2.  That  by  reason  of  the  defendant,  its  agents,  employees,  and 
servants,  failing  to  use  and  exercise  proper  care,  diligence,  material, 
and  skill  in  putting  in,  operating,  inspecting,  and  maintaining  its 
plant,  wires,  and  other  appurtenances  as  aforesaid,  defendant  did, 
on  the  18th  day  of  January,  1906,  and  without  fault  of  the  plaintiff, 
negligently  and  carelessly  permit  a  dangerous,  unusual,  and  exces- 
sive current  of  electricity  to  pass  into  and  through  said  defective 
system  of  wires  in  plaintiff's  said  livery  barn,  and  thereby  care- 
lessly, unlawfully,  and  negligently  allowed  one  of  said  wires  in  said 
barn  to  become  burned,  broken,  and  to  fall  down  in  said  livery  barn, 
and  that  while  said  wire  charged  with  electricity  was  hanging,  and 
without  the  fault  of  or  any  contributory  negligence  on  the  part  of 
plaintiff,  said  broken  and  hanging  wire  came  into  contact  with  and 
struck  two  horses  belonging  to  plaintiff,  and  threw  said  horses  to 
the  floor  of  said  barn,  killing  both  of  said  horses,  and  tearing  and 
burning  the  harness  thereon,  to  plaintiff's  damage  in  the  sum  of 
$375 ;  that  by  reason  of  the  defendant,  its  agents,  servants,  and  em- 
ployees, negligently  and  carelessly  permitting  said  unusual,  exces- 
sive, and  dangerous  current  of  electricity  to  pass  into  and  through 
the  said  system  of  wires  so  constructed  by  defendant  in  plaintiff's 
said  livery  barn  as  aforesaid,  the  defendant,  its  agents,  servants,  and 
employees  did,  on  the  date  aforesaid,  negligently,  carelessly,  and 
unlawfully,  and  without  fault  or  any  contributory  negligence  on  the 
part  of  the  plaintiff,  burn  up,  destroy,  and  completely  ruin  all  of  the 
electric  lights  and  system  of  wires  in  plaintiff's  barn,  to  plaintiff's 
greater  and  further  damage  in  the  sum  of  $ 

[Prayer,  etc.]  G.  F.  Hansbrough, 

[Verification.]  Attorney  for  plaintiff. 


1532  NEGLIGENCE  —  MISCELLANEOUS.  [Tit.  XlllT 

FORM   No.  917 — For  damages  caused  by  negligent  breaking  of  a  plate-glass 
window. 

(In  Clardy  v.  Hudspeth,  89  Ark.  189;  115  S.  W.  1131;  21  L.  R.  A. 

(N.  S.)  702.) 

[Title  of  court  and  cause.] 

[After  formal  parts,  plaintiff  alleges:] 

That  plaintiff  was  on  the  10th  day  of  January,  1907,  and  ever  since 
has  been,  the  owner  of  a  certain  brick  building  in  the  town  of  Nash- 
ville, Arkansas,  situated  on  the  corner  of  Main  and  Clark  streetsr 
on  lot  4,  block  25,  which  is  known  as  the  post-office  building;  that 
on  the  said  10th  day  of  January,  1907,  defendant  negligently  and 
carelessly  walked  through  and  broke  one  large  plate-glass  window, 
then  and  there  permanently  set  and  fixed  and  annexed  to  said  build- 
ing and  being  a  part  thereof;  that  said  glass  window  was  of  the 
value  of  $35 ;  that  thereby  plaintiff  was  injured  in  his  property  by 
the  defendant,  as  aforesaid,  and  to  the  damage  of  plaintiff  in  the 
said  sum  of  $35. 

[Concluding  part.]  J.  W.  Bishop, 

Attorney  for  plaintiff. 

FORM    No.  918 — For  damages  for  personal  Injuries. — Negligence  in  maintain- 
ing excavation   in   highway. 

(In  Sanderson  v.  Billings  Water  Co.,  19  Montana  236;  47  Pac.  998.) 

[Title  of  court  and  cause.] 

That  during  all  of  the  times  hereinafter  mentioned  the  defendant 
was,  and  still  is,  a  corporation  organized  under  the  laws  of  the  state 
of  Montana;  that  the  defendant,  on  the  21st  day  of  June,  1894,  by 
its  agents  and  servants,  wrongfully,  carelessly,  and  negligently 
excavated  a  deep  and  dangerous  trench  in  and  across  a  public  street 
[here  named  and  location  of  trench  described]. 

2.  That  said  defendant,  by  its  agents  and  servants,  wrongfully, 
negligently,  and  carelessly  thus  obstructing  said  highway,  left  a 
large  pile  of  earth  in  said  road,  street,  and  highway,  and  negligently 
suffered  said  pile  of  earth  dug  from  said  excavation  and  trench  to 
remain  thereon  and  thereover,  obstructing  said  highway  during  the 
night-time  of  said  day;  and  to  remain  thereon  and  thereover  openly 
exposed,  and  without  any  protection,  fence,  light,  signal,  or  anything 
else  to  indicate  danger  or  give  notice  to  travelers  along  said  high- 
way  against  accidents ;  that  by  reason  of  said  negligence,  careless- 


Ch.  CXI.]  COMPLAINTS    [OR  PETITIONS].— FORMS.  1533 

ness,  and  improper  conduct  of  the  defendant,  by  its  said  agents  and 
servants,  in  the  night-time  of  the  said  day,  while  the  plaintiff  was 
lawfully  traveling  on  said  highway  and  street,  the  two-wheeled  cart 
of  the  plaintiff,  being  then  and  there  driven  by  plaintiff,  with  one 
horse  drawing  the  same,  then  passing  through  said  street  and  along 
and  over  said  road,  street,  and  highway,  the  plaintiff  being  then  and 
there  wholly  unaware  of  danger,  was,  without  fault  or  negligence  on 
plaintiff's  part,  accidentally  driven  against  the  said  pile  of  earth, 
and  thereby  overturned,  whereby  the  plaintiff  sustained  great  bodily 
injury,  in  this,  that  one  of  his  ankles  was  dislocated  and  badly 
sprained,  and  is,  as  he  is  informed  and  believes,  permanently  injured; 
that  he  was  thereby  made  sick,  sore,  and  lame,  was  put  to  great  pain, 
and  was,  and  is  still,  prevented  from  going  on  with  his  occupation 
and  business  of  farming,  to  his  damage  in  the  sum  of  $5,000. 

Wherefore,  plaintiff  prays  judgment  against  the  defendant  for  the 
sum  of  $5,000,  and  costs  of  this  action. 

Gib  S.  Lane, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  919 — For  negligently  managing  artificial  waterway. 

(In  Tuolumne  etc.  Water  Co.  v.  Columbia  etc.  W^ater  Co.,  10  Cal.  194.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff  was 
the  owner  of  a  certain  valuable  water-ditch,  for  the  purpose  of  con- 
veying water,  at  which  time  and  place  the  defendant  was  also  the 
owner  of  a  certain  other  water-ditch,  for  the  same  purpose. 

2.  That  at  said  time  and  place  the  defendant's  ditch  was  so  badly 
and  negligently  constructed  and  managed,  and  the  water  therein  was 
so  negligently  and  carelessly  attended  to,  that  said  ditch  broke  and 
gave  way,  and  the  water  therein  flowed  over  and  upon  the  ditch  of 
the  plaintiff,  greatly  damaging  and  injuring  the  same,  and  carrying 
down  therein  and  thereon  large  quantities  of  rock,  stone,  earth,  and 
rubbish,  and  breaking  the  plaintiff's  said  ditch,  and  depriving  him 
of  the  use  and  profit  of  the  water  flowing  therein,  to  the  plaintiff's 
damage  in  the  sum  of  $ 

[Concluding  part.] 


1534  NEGLIGENCE.— MISCELLANEOUS.  [Tit.  XIII. 

FORM   No.  920— For  negligently  causing  fire. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
was,  and  still  is,  possessed  of  about  acres  of  land,  situate  in 
said  county,  on  which  there  was  an  orchard  and  fences,  and  also  a 
barn,  in  which  was  stored  at  said  time  [five]  tons  of  hay. 

2.  That  the  defendant  on  said  day  intentionally  kindled  a  fire  on 
his  land  next  adjoining  the  plaintiff's,  and  near  to  plaintiff's  division 
fence,  and  so  negligently  watched  and  tended  the  said  fire  that  it 
spread  to  the  plaintiff's  said  land,  and  consumed  said  barn  and  said 
hay,  of  the  value  of  $  ;  and,  also,  [set  out  special  damages]. 

[Concluding  part.] 

FORM   No.  921 — For  negligent  navigation  of  boat. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  owned  a 
certain  boat  [describing  it],  of  the  value  of  $  ,  then  afloat  in 
the  Kiver,  near  ,  and  loaded  with  [state  what],  and 
the  defendant  was  then  and  there  in  the  possession  of  a  certain 
steamboat,  called  ,  and  had  the  management  and  direction 
thereof. 

2.  That  the  defendant,  at  said  time  and  place,  took  so  little  and 
such  bad  care  of  said  steamboat,  in  the  direction  and  management 
thereof,  that  the  same,  by  and  through  his  carelessness,  negligence, 
and  mismanagement,  with  great  force,  ran  foul  of  and  struck  against 
the  plaintiff's  said  boat,  and  thereby  broke  and  greatly  damaged  the 
same,  and  thereby  said  goods  and  chattels  of  the  plaintiff,  then  on 
board  of  his  said  boat,  became  saturated  with  water  and  spoiled. 

3.  That  by  reason  whereof  the  plaintiff  has  been  obliged  to  expend, 
and  has  expended,  the  sum  of  $  ,  in  and  about  repairing  the 
damage  to  said  boat,  and  in  replacing  or  restoring  said  goods  and 
chattels,  and  was  deprived  of  the  use  of  said  boat  for  days, 
to  the  damage  of  the  plaintiff  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  922 — For  injuries  to  sheep  caused  by  ferocious  dog. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  at  the  time  hereinafter  mentioned  the  defendant  wrong- 


Ch.  CXI.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1535 

fully  kept  a  dog,  well  knowing  him  to  be  of  a  ferocious  and  mis- 
chievous disposition,  and  accustomed  to  attack  and  bite  sheep  [or 
other  animals,  as  the  case  may  be]. 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  said  dog, 
while  in  the  keeping  of  the  defendant,  attacked  and  bit  [or  hunted, 
chased,  bit,  and  worried]  the  sheep  belonging  to  the  plaintiff. 

3.  That  in  consequence  thereof,  the  said  sheep  of  the  plaintiff,  of 
the  value  of  $  ,  died,  and  became  of  no  value  to  the  plaintiff, 
and  the  residue  of  the  said  sheep  of  the  plaintiff,  being  also  of  great 
value,  were  injured  and  rendered  of  no  value  to  the  plaintiff,  to  his 
damage  in  the  sum  of  $ 

[Concluding  part.] 


FORM   No.  923 — By  guardian  ad  litem,  for  damages  against  owners  of  vicious 
animal. 

(O'Rourke  v.  Finch,  9  Cal.  App.  324;  99  Pac.  392.) 
[Title  of  court.] 

John  H.  J.  O'Rourke,  a  minor,  by" 
Frank  J.  O'Rourke,  his  guard- 
ian ad  litem,  plaintiff, 
v. 

J.  T.  Finch,  John  Doe,  and  Jane 
Doe,  defendants. 
Now  comes  plaintiff,  by  Frank  J.  O'Rourke,  his  guardian  ad  litem. 

and  complains  of  defendants,  and  for  cause  of  action  alleges: 

1.  That  on  the  24th  day  of  July,  1906,  said  guardian  ad  litem 
filed  with  said  court  a  verified  petition  to  be  appointed  the  guardian 
ad  litem  of  plaintiff,  who  is  a  minor  under  the  age  of  fourteen  years, 
and  that  said  petition  came  on  to  be  heard  by  said  court  on  the 
24th  day  of  July,  1906 ;  that  upon  the  hearing  of  said  petition  said 
court,  by  its  order  and  decree  duly  given  and  made  on  said  date, 
appointed  the  said  Frank  J.  O'Rourke  the  guardian  ad  litem  of  the 
plaintiff  to  commence  and  prosecute  this  action. 

2.  That  the  true  names  of  defendants  John  Doe  and  Jane  Doe  are 
unknown  to  plaintiff,  and  for  that  reason  are  sued  herein  under 
the  fictitious  names  of  John  Doe  and  Jane  Doe. 

3.  That  at  the  times  hereinafter  mentioned  defendants  kept  a 
vicious  and  ferocious  dog,  accustomed  to  attack  and  injure  persons, 


1536  NEGLIGENCE.— MISCELLANEOUS.  [Tit.  XIII. 

and  that  defendants  well  knew  said  dog  to  be  vicious  and  ferocious 
and  accustomed  to  attack  and  injure  persons. 

4.  That  the  defendants,  while  they  kept  said  dog  as  aforesaid, 
negligently  suffered  said  dog  to  go  at  large  without  being  securely 
or  otherwise  guarded  or  confined. 

5.  That  on  the  14th  day  of  June,  1906,  on  Sixth  Avenue,  near 
Pt.  Lobos  Avenue,  in  front  of  the  home  of  the  plaintiff,  in  the  city 
and  county  of  San  Francisco,  said  dog,  while  in  the  keeping  of 
defendants,  and  while  at  large,  and  not  securely  or  otherwise 
guarded  or  confined,  attacked,  bit,  and  wounded  plaintiff;  that  said 
dog  bit  and  tore  the  head,  ears,  and  face  of  plaintiff  in  such  a  man- 
ner that  fifty-two  stitches  were  and  had  to  be  taken  in  the  head, 
ears,  and  face  of  plaintiff ;  that  the  right  ear  of  plaintiff  was  by  said 
dog  nearly  torn  from  the  head  of  plaintiff,  and  all  to  the  damage 
of  plaintiff  in  the  sum  of  $4,500,  all  of  which  was  caused  by  the 
negligence  and  carelessness  of  defendants  in  permitting  and  suffer- 
ing said  dog  to  go  at  large  without  being  securely  or  otherwise 
guarded  or  confined. 

6.  That  plaintiff,  by  reason  of  said  injuries  as  aforesaid,  now  does 
suffer,  and  ever  since  said  injuries  were  received  by  him  has  suffered, 
great  pain;  that  plaintiff  will  be  disfigured  and  marked  for  life  by 
reason  of  said  injuries ;  that  prior  to  the  time  of  his  receiving  said 
injuries  plaintiff  enjoyed  the  best  of  health,  but  that  ever  since  said 
injuries  were  received  as  aforesaid,  and  as  a  consequence  thereof, 
plaintiff  has  been,  and  now  is,  sick  and  in  poor  health,  and  he  can 
not  rest;  that  by  reason  of  said  injuries  plaintiff  has  been  obliged 
to  have  a  nurse  to  care  for  and  wait  upon  him  at  all  times  herein 
mentioned,  to  the  further  damage  of  plaintiff  in  the  sum  of  $200; 
that  plaintiff  is  now  indebted  in  the  further  sum  of  $200  for  medical 
services,  which  he  was  obliged  to  have  by  reason  of  said  injuries: 
that  plaintiff  will  be  damaged  in  the  further  sum  of  $100,  for  medical 
services  to  treat  the  injuries  hereinbefore  mentioned,  in  an  endeavor 
to  effect  a  cure  thereof. 

Wherefore,  plaintiff  demands  judgment  against  defendants  for 
$5,000,  and  costs  of  suit. 

Don  R.  Jacks, 
[Verification.]  Attorney  for  plaintiff. 


•Ch.  CXI.]  COMPLAINTS    [OR   PETITIONS].— FORMS  15.J7 

FORM   No.  924 — By  next  friend,  for  damages  for  personal  injuries  caused  by 
negligent  shooting. 

(In  Morgan  v.  Mulhall,  214  Mo.  451;  114  S.  W.  4.) 
[Title  of  court  and  cause.] 
The  plaintiff  for  his  cause  of  action  showeth  to  the  court : 

1.  That  on  the  24th  day  of  May,  1905,  upon  the  petition  of  said 
Ernest  Morgan,  the  said  circuit  court  did  appoint  Joseph  Morgan 
as  his  next  friend  to  commence  and  prosecute  this  suit,  and  said 
Joseph  Morgan  has  consented  in  writing  to  act  as  such  next  friend 
•for  said  purpose. 

2.  And  the  plaintiff  further  showeth  to  the  court,  that  on  the  18th 
day  of  June,  1904,  in  said  city  of  St.  Louis,  and  on  the  grounds  of 
the  Louisiana  Purchase  Exposition  Company,  the  defendant,  by 
shooting  into  a  crowd  of  people  negligently,  shot  the  plaintiff,  Ernest 
Morgan,  with  a  pistol;  that  by  said  shooting  the  bowel  of  plaintiff's 
abdomen  was  perforated  in  front  and  rear,  and  plaintiff's  hip  socket 
was  shattered,  and  the  head  of  his  thigh-bone  destroyed;  that  it  was 
necessary  for  the  surgeon  in  treating  said  wounds  to  cut  open  plaint- 
iff's abdomen  and  close  the  bowel  where  perforated,  and  thereafter 
to  cut  off  and  remove  the  head  of  said  thigh-bone ;  that,  as  a  further 
result  of  said  injuries,  Bright 's  disease  was  developed  in  plaintiff; 
that  plaintiff's  life  was  saved  by  his  surgeon,  but  plaintiff  suffered 
on  account  of  said  injuries  most  excruciating  pain  and  anguish  of 
body  and  mind ;  that  his  constitution  has  been  permanently  weak- 
ened, his  leg  permanently  shortened,  and  he  now  suffers,  and  will 
continue  to  suffer,  great  bodily  and  mental  pain  and  anguish,  all 
to  plaintiff's  damage  in  the  sum  of  $20,000,  for  which  amount  and 
his  costs  he  asks  judgment  against  the  defendant. 

Thomas  F.  Gault, 
Attorney  for  plaintiff. 

The  petition  in  form  No.  924  was  pronounced  by  the  court  to  be  "uncommonly 
laconic  and  crisp  in  its  charging  part,  but  it  well  charges  that  plaintiff  was  negli- 
gently shot  by  defendant  with  a  pistol,  and  that  averment  charges  an  actionable 
wrong.  At  the  very  worst,  the  most  that  can  be  said  against  it  is  that  it  is  a  gen- 
eral charge  of  negligence.  In  that  case,  absent  a  motion  to  make  more  certain  and 
specific,  absent  any  objection  to  its  sufficiency  prior  to  verdict, — as  here, — the  peti- 
tion must  be  held  good  after  a  verdict."  (The  court  further  on  states  that  the  aver- 
ment is  more  than  a  general  charge  of  negligence,  and,  in  the  main,  commends  the 
pleading  as  being  direct  and  free  from  the  circumlocution  of  much  of  the  pleadings 
in  the  courts):    Morgan  v.  Mulhall,  214  Mo.  451,  114  S.  W.  4. 


1538  NEGLIGENCE.— MISCELLANEOUS.  [Tit.  XIII. 

FORM   No.  925— For  damages  caused  by  waters  from  roof. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  law- 
fully possessed  of  a  dwelling-house  and  premises,  situate  in  the 
county  aforesaid,  and  in  which  the  plaintiff  and  his  family  then 
lived. 

2.  That  the  defendant  wrongfully  erected  a  building  near  the  said 
dwelling-house  of  the  plaintiff,  in  so  careless  and  improper  a  manner 
that  by  reason  thereof,  on  said  day,  and  at  other  times  afterwards, 
and  before  this  action,  large  quantities  of  rain-water  ran  from  said 
building  upon  and  into  the  said  dwelling-house  and  premises  of  the 
plaintiff,  and  the  walls,  ceilings,  papering,  and  other  parts  thereof 
were  thereby  wet  and  damaged,  and  because  thereof  plaintiff's  said 
house  became  unfit  for  habitation,  to  the  damage  of  the  plaintiff  in 
the  sum  of  $ 

[Concluding  part.] 

FORM   No.  926— For  damages  caused  by  falling  snow  and  Ice. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  defendant  was  the 
possessor  of  a  building  abutting  and  adjoining  Street,  which 
was  a  public  street,  in  the  city  of  ,  in  front  of  which  build- 
ing, as  part  of  said  street,  there  was  a  sidewalk,  over  which  people 
were  accustomed  to  pass  at  all  hours  of  the  day. 

2.  That  on  said  day,  and  before  that  time,  the  defendant  care- 
lessly and  negligently  suffered  and  permitted  large  masses  of  snow 
and  ice  to  accumulate  and  remain  on  the  roof  of  said  building,  so 
that  the  same  was  dangerous  to  persons  passing  on  said  sidewalk, 
the  same  being  liable  to  slide  therefrom  in  and  upon  said  sidewalk. 

3.  That  on  said  day  the  plaintiff  was  lawfully  passing  along  on 
the  sidewalk  in  front  of  said  building,  and  said  snow  and  ice  slid 
from  the  roof  of  said  building  down  and  upon  the  plaintiff,  by  reason 
whereof  the  plaintiff  was  thrown  down  upon  said  sidewalk  and 
greatly  injured  in  [specifying  injuries  and  expenses  incurred  in  their 
cure,  and  other  special  damages],  to  the  damage  of  the  plaintiff  in 
the  sum  of  $ 

[Concluding  part.] 


Cb.  CXI.]  ANSWERS.— FORMS.  1539 

FORM    No.  927 — For  negligent  collision  with   carriage   [or  automobile]. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  the 
owner  of  a  carriage  [or  automobile],  in  which  carriage  [or  automo- 
bile] he  was  riding  on  said  day  along  a  public  highway  in  the 
town  of 

2.  That  the  defendant  was  then  possessed  of  a  certain  other  car- 
riage [or  automobile],  which  was  then  passing  along  said  highway, 
then  under  the  care  and  direction  of  the  defendant  [or  of  the  defend- 
ant's servant]. 

3.  That  the  defendant  [or  his  said  servant]  then  and  there  so  care- 
lessly and  negligently  drove  and  managed  his  said  horses  and 
vehicle  [or  so  carelessly  and  negligently  managed  his  automobile] 
that,  by  reason  of  his  negligence,  the  same  violently  collided  with, 
and  struck  the  plaintiff's  carriage  and  horse  [or  automobile],  and 
thereby  broke  and  damaged  the  same  [or  otherwise  describe  the 
accident  according  to  the  fact,  and  state  the  injuries  sustained],  to 
the  damage  of  the  plaintiff  in  the  sum  of  $ 

[Concluding  part.] 

§387.     ANSWERS. 

FORM   No.  928 — Defense  alleging  plaintiff's  own  negligence. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition], 
and  alleges: 

Defendant  denies  that  he  was  guilty  of  carelessness  or  negligence, 
or  improper  conduct,  as  in  the  complaint  [or  petition]  alleged,  or 
otherwise,  or  at  all,  and  alleges  that  the  injury  therein  described,  if 
any  there  was,  was  caused  by  the  fault  and  negligence  of  the  plaint- 
iff himself,  in  this:  [Here  specify  the  particulars  in  which  the 
plaintiff  was  himself  negligent.] 

[Etc.] 

FORM   No.  929 — Denial  of  defendant's  ownership  of  the  thing  causing  injury. 

[Title  of  court  and  cause.] 
[After  introductory  part:] 

Defendant  denies  that  he  was  at  the  time  of  the  grievances  in 
the  complaint  alleged  [or  at  any  time  or  at  all]  the  owner,  or  in  the 


1540  NEGLIGENCE.— MISCELLANEOUS.  [Tit.  XIII. 

possession  or  control  of  [here  name  the  thing  alleged  to  have  caused 
the  injury]. 
[Etc.] 

FORM    No.  930 — Denial  of  plaintiff's  ownership  of  thing  injured  or  destroyed. 

[Title  of  court  and  cause.] 

[After  introductory  part:] 

Defendant  denies  that  plaintiff  was  at  the  time  of  the  alleged 
grievances  set  forth  in  the  complaint  herein  [or  at  any  time  or  at 
all]  the  owner,  either  in  whole  or  in  part,  of  said  [here  name  the 
thing  alleged  to  have  been  injured  or  destroyed]. 

[Etc.] 

Form  of  petition  in  an  action  to  recover  for  injuries  suffered  by  minor  child  in  a 
room  where  dangerous  machinery  was  operated  by  the  defendant  company,  held 
good  on  appeal  as  against  a  general  demurrer,  though  open  to  exceptions  upon 
special  demurrer:    Poteet  v.  Blossom  O.  &  C.  Co.  (Tex.  Civ.  App.),  115  S.  W.  289,  290. 

Form  of  complaint  in  an  action  instituted  by  the  mother,  for  damages  caused  by 
defendant  in  negligently  exposing  her  son  to  smallpox,  which  contagious  disease 
was  thereby  contracted:    See  Franklin  v.  Butcher  (Mo.),  129  S.  W.  428. 

Forms  of  complaints  [and  petitions]  in  actions  for  personal  injuries  alleged  to 
have  been  caused  by  the  negligence  of  defendant:  Behm  v.  Armour,  58  Wis.  1,  2,  15 
N.  W.  806,  807;  Greenberg  v.  Whitcomb  Lumber  Co.,  90  Wis.  225,  63  N.  W.  93,  48  Am. 
St.  Rep.  911,  28  L.  R.  A.  439;  Anderson  v.  Hayes,  101  Wis.  538,  539,  77  N.  W.  891;  St. 
Louis  etc.  R.  Co.  v.  Toomey,  6  Kan.  App.  410,  49  Pac.  819;  Atchison  etc.  R.  Co.  v. 
O'Melia,  1  Kan.  App.  374,  375,  41  Pac.  437;  Hudson  v.  Wabash  W.  R.  Co.,  101  Mo.  13, 
19,  14  S.  W.  15. 

Form  of  petition  in  an  action  for  damages  for  the  negligent  sale  of  sulphuric  acid 
on  application  for  sulphuric  ether:    Fisher  v.  Golladay,  38  Mo.  App.  531,  535. 

§388.     ANNOTATIONS. — Miscellaneous  cases  of  negligence. 

1.  Actions  for  negligence  generally. — Essential  elements  of  complaint. 

2.  Duty  of  defendant  must  be  shown. 

3.  Negligence  is  the  ultimate  fact  to  be  pleaded. 

4.  Negligence  is  the  ultimate  fact  and  not  a  conclusion  of  law. 

5.  Complaint  in  an  action  for  injuries  caused  by  an  uninsulated  electric  wire. 

6.  Alleging  negligence  of  defendant  in  maintaining  dangerous  electric  wires. 
7,  8.  For  injuries  caused  by  vicious  dog. 

9.  Complaint,   when  deficient. 
10,  11.  Pleading  negligence  in  general  terms. 

12.  Allegation  of  negligence  in  general  terms. 

13.  Specific  pleading  of  negligence. — Doctrine  as  to. 
14-16.  Allegations   specially  pleaded   must  be  proved. 

17.  Effect  of  pleading  specific  acts. 

18.  Damages. — Specific  pleading  of  items. 

19.  Damages  to  an  infant  such  as  are  personal  to  himself. 

20.  Defenses. — In  general. 

21.  Contributory  negligence. — Nature   of  defense. 
22-24.  Contributory  negligence  must  be  specially  pleaded. 

25.  Insufficient  pleading  of  contributory  negligence. 

26.  Burden  of  proof  as  to  contributory  negligence. 

27.  Contributory   negligence   is   a   matter  of  defense. 


Ch.  CXI.] 


ANNOTATIONS. 


1541 


28,  29.  Contributory  negligence. — Conflict  of  authorities. 

30.  Plea  of  contributory  negligence  in  general  terms. 

31.  Defense  must  establish  plea. 

32.  Failure  to  submit  evidence  in  support  of  defense. 

33.  When  plaintiff  waives   pleading  of  defense. 

34.  Defense  of  due  performance  of  duty. 

35.  Trial  and  proof. — Negligence  as  a  question  of  fact. 

36.  Physical  examination  of  plaintiff  by  defendant's  physicians. 

37.  Right  to   present   evidence   under  averment   of   legal   conclusion   where   no 

objection  is  made  to  the  pleading. 


1.  ACTICNS  FOR  NEGLIGENCE 
GENERALLY. — Essential  elements  of 
complaint. — A  complaint  in  an  action  for 
negligence  must  state  facts  to  meet 
three  essential  elements, — namely,  a 
duty  or  obligation  which  the  defendant 
is  under  to  protect  the  plaintiff  from  in- 
jury; a  failure  to  discharge  that  duty; 
and  injury  resulting  from  the  failure. 
Not  only  must  the  complaint  disclose 
these  essentials,  but  the  evidence  must 
support  them,  and  the  absence  of  proof 
of  any  of  them  is  fatal  to  a  recovery: 
Means  v.  Southern  California  R.  Co.,  144 
Cal.  473,  77  Pac.  1001,  1  Am.  &  Eng.  Ann. 
Cas.  206,  207,  and  cases  enumerated  in 
note,  1  Am.  &  Eng.  Ann.  Cas.  209,  210. 

2.  Duty  of  defendant  must  be  shown. — 
In  pleading  negligence  arising  from  the 
wrongful  conduct  of  another,  it  is  essen- 
tial that  the  petition  shall  contain  an 
allegation  of  duty  owing  by  the  defend- 
ant to  the  plaintiff,  or  facts  and  circum- 
stances from  which  such  duty  can  be  in- 
ferred, and  a  failure  in  the  performance 
or  an  imperfect  performance  of  such 
duty  by  the  defendant,  and  that  such 
failure  or  breach  of  duty  was  a  material 
and  proximate  cause  of  the  injury 
and  damage  to  the  plaintiff:  Poteet  v. 
Blossom  O.  &  C.  Co.  (Tex.  Civ.  App.), 
115  S.  W.  2S9,  290,  (by  father  of  minor 
of  the  age  of  four  and  one-half  years  to 
recover  for  injuries  sustained  by  the 
child  in  a  mill  and  seed-room  where  dan- 
gerous machinery  was  operated). 

3.  Negligence  is  the  ultimate  fact  to  be 
pleaded,  and  it  forms  part  of  the  act 
from  which  an  injury  arises.  It  is  ab- 
sence of  care  in  the  performance  of  an 
oct,  and  is  not  merely  the  result  of 
such  absence,  but  the  absence  itself: 
Stephenson  v.  Southern  Pacific  Co.,  102 
Cai.  143,  148,  34  Pac.  618,  36  Pac.  407, 
(r.egligence  of  railroad  company  in 
backing  train  into  street-car). 

4.  Negligence  is  the  ultimate  fact,  and 
Jury's  PL— 98. 


not  a  conclusion  of  law:  House  v. 
Meyer,  100  Cal.  592,  593,  35  Pac.  308. 

5.  The  complaint  in  an  action  for  In- 
juries caused  by  an  uninsulated  electric 
wire  was  held  sufficient  where  it  set 
forth,  substantially:  That  the  defend- 
ant was  engaged  in  the  operation  of 
machinery  and  apparatus  for  producing 
electricity  and  supplying  it  to  dwelling- 
houses  in  the  city  of  Denver;  that  it  had 
extended  its  wires  to  the  house  of 
Charles  W.  Walters,  the  father  of  the 
plaintiff,  for  the  purpose  of  supplying 
light  to  that  house;  that  it  had  attached 
to  the  house  near  to,  and  directly  under 
the  window,  an  electric  device  called  a 
converter,  and  near  to  and  above  the 
converter,  and  directly  under  the  win- 
dow, had  placed  two  iron  supports  to 
hold  glass  insulators,  to  which  were  at- 
tached wires,  connected  with  the  house 
and  conveying  the  electric  current  for 
furnishing  light  to  the  house;  that  the 
defendant  had  carelessly  suffered  the 
wires  to  become  uncovered  and  unin- 
sulated; that  the  plaintiff,  a  child  of 
twelve  years  of  age,  who  was  residing 
with  his  father,  upon  looking  out  of  the 
window,  and  seeing  that  one  of  the  in- 
sulators had  been  remced  from  its  iron 
support,  and  knowing  nothing  of  the 
danger  incident  to  his  coming  in  contact 
with  the  wire  attached  to  the  insulator, 
seized  hold  of  the  insulator,  for  the  pur- 
pose of  replacing  it  upon  its  support, 
and  received  a  charge  of  electricity  from 
the  naked  wire,  which  his  hands  touched 
in  seizing  the  insulator,  resulting  in  se- 
rious and  permanent  injury  to  him,  etc. 

The  complaint  in  which  the  foregoing 
facts  constituted  the  charge  of  negli- 
gence was  objected  to  on  the  grounds, — 
first,  that  the  facts  alleged  do  not  con- 
stitute negligence  on  the  part  of  the  de- 
fendant within  the  contemplation  of  the 
law;  second,  that  the  complaint  shows 
that   the  proximate   cause   of   the   injury 


1542 


NEGLIGENCE.— MISCELLANEOUS. 


[Tit.  XIII. 


was  the  act  of  the  plaintiff  in  seizing 
the  insulator,  and  not  the  exposed  con- 
dition of  the  wire;  and  third,  that  it  ap- 
pears upon  the  face  of  the  complaint 
that  the  plaintiff  was  guilty  of  negli- 
gence contributing  to  his  injury  The 
complaint  as  to  the  first  objection  was 
neld  sufficient  where  it  could  not  be 
said,  as  a  matter  of  law,  that  proof 
would  be  a.dmissible  under  its  aver- 
ments which  would  justify  a  verdict  that 
In  leaving  the  wire  exposed  as  alleged 
the  defendant  was  guilty  of  negligence. 
As  to  the  second  and  third  objections, 
the  court  stated  that  the  question  of  the 
legal  effect  of  the  plaintiff's  act  in  reach- 
ing out  to  the  wire  was  in  no  manner 
connected  with  the  question  of  proxi- 
mate cause,  but  must  be  considered  only 
in  an  examination  of  the  charge  of  con- 
tributory negligence,  of  which  it  can  not 
be  said  that  the  statements  of  the  com- 
plaint, as  a  matter  of  law,  showed  the 
plaintiff  guilty:  Walters  v.  Denver  Cons. 
Electric  Light  Co.,  12  Colo.  App.  145,  54 
Pac.  Rep.  960,  961;  s.  c.  39  Colo.  101,  89 
Pac.  815,  816. 

6.  Alleging  negligence  of  defendant  in 
maintaining  dangerous  electric  wires. — 
For  a  complaint  in  an  action  by  an  ad- 
ministrator for  wrongful  death  of  his 
decedent,  held  sufficient  as  showing  em- 
ployment of  the  deceased  by  the  defend- 
ants, and  also  as  stating  facts  suf- 
ficient to  show  that  the  proximate  cause 
of  the  injury  was  due  to  conditions  of 
which  the  defendants  had  knowledge, 
and  of  which  they  failed  to  inform  the 
deceased,  although  the  court  says  the 
allegations  are  not  as  definite,  certain, 
or  specific  as  they  should  have  been 
made,  see  Poor  v.  Madison  R.  P.  Co.,  38 
Mont.  341,  99  Pac.  947.  (As  against  a 
general  and  special  demurrer  filed,  how- 
ever, the  complaint  was  upheld.) 

7.  For  injuries  caused  by  vicious  dog. 
— Judgment  was  recovered  in  the  trial 
court,  and  affirmed  on  appeal,  upon  a 
complaint  alleging  personal  injuries 
caused  by  the  bite  of  a  vicious  dog,  the 
allegations  being  in  substance  as  fol- 
lows: That  on  and  prior  to  July  19,  1903, 
the  defendant,  W.  D.  Hofius,  was  the 
owner  of  a  bulldog  known  to  him  to  be 
vicious,  dangerous,  and  ferocious;  that 
said  Hofius  kept  said  dog  on  the  prem- 
ises claimed  by  him,  on  the  tide  fiats  in 
the    city    of    Seattle;    that    across    said 


premises  there  was  a  right  of  way,  com- 
monly used  by  the  public  generally, 
with  the  knowledge  and  consent  of  de- 
fendant; that  on  the  19th  day  of  July, 
1903,  while  plaintiff  was  wholly  on  said 
right  of  way,  going  to  his  regular  work, 
said  dog,  without  any  cause  therefor, 
"ferociously,  viciously,  and  maliciously 
bit  and  lacerated  the  plaintiff's  left  leg, 
causing  the  plaintiff  great  pain,"  etc.: 
Grissom  v.  Hofius,  39  Wash.  51,  80  Pac. 
1002,  4  Am.  &  Eng.  Ann.  Cas.  125. 

8.  As  to  the  knowledge  of  the  owner 
of  the  viciousness  of  an  animal  required 
to  be  alleged  and  proved,  see  the  author- 
ities in  the  note  to  Grissom  v.  Hofius,  39- 
Wash.  51,  80  Pac.  1002,  in  4  Am.  &  Eng. 
Ann.  Cas.  127. 

9.  Complaint,  when  deficient. — A  com- 
plaint is  deficient  in  an  action  to  recover 
for  damages  for  personal  injury  result- 
ing from  the  negligence  of  defendant, 
where  it  fails  to  show  the  facts  wherein 
the  defect  consisted  and  the  causal  con- 
nection between  the  defective  place  and 
the  injury,  and  where  such  complaint 
further  fails  to  show  that  the  defendant 
had  knowledge  of  the  efficient  cause  of 
the  injury,  or,  by  the  exercise  of  rea- 
sonable diligence,  ought  to  have  had 
that  knowledge:  Fearon  v.  Mullins,  35 
Mont.  232,  88  Pac.  794,  795,  (for  damages 
for  personal  injuries — negligent  main- 
tenance of  a  defective  porch,  resulting 
in  serious   injuries   to  servants). 

10.  PLEADING  NEGLIGENCE  IN 
GENERAL  TERMS. — Negligence  may  be 
pleaded  in  general  terms  without  speci- 
fying the  acts  constituting  the  negligence 
under  the  law,  in  some  jurisdictions, 
but  if  the  plaintiff  attempts  to  specify 
the  negligence  of  the  defendant,  he  is 
confined  in  his  proof  to  the  negligence, 
as  specified,  and  can  not  recover  upon 
any  other  ground:  Lexington  R.  Co.  v. 
Britton,  130  Ky.  App.  676,  114  S.  W.  295, 
297:  Gaines  &  Co.  v.  Johnson.  32  Ky. 
Law  Rep.  58,  105  S.  W.  381. 

11.  It  is  sufficient  to  allege  negligence 
in  general  terms,  specifying,  however, 
the  particular  act  which  is  alleged  to 
have  been  negligently  done:  McGehee 
v.  Schiffman,  4  Cal.  App.  50,  87  Pac. 
290,  291,  (action  to  recover  for  negli- 
gence of  dentist). 

12.  Allegation  of  negligence  In  general 
terms. — Where  no  question  of  the  suf- 
ficiency of  the  pleading  was  raised  dur- 


Oh.  CXI.] 


ANNOTATIONS. 


1543 


Jng  the  trial,  and  no  motion  made  to 
make  the  complaint  more  specific,  it  hag 
been  held  that  the  question  of  the  suf- 
ficiency of  the  pleading  as  to  allegations 
of  negligence  generally  can  not  be  raised 
on  appeal  for  the  first  time,  and  that 
such  allegations  are  sufficient  to  support 
the  Judgment.  The  portion  of  the  com- 
plaint alleging  negligence  was  as  fol- 
lows: That  the  defendant  "did  negli- 
gently and  carelessly  furnish  the  plaint- 
iff and  other  employees  with  dangerous, 
defective,  and  improper  tools  and  appli- 
ances with  which  to  perform  the  work, 
and  negligently  failed  and  neglected  to 
warn  or  instruct  the  plaintiff  or  other 
servants  of  the  hazards  and  dangers  of 
the  work.  *  *  *  And  said  defend- 
ants and  each  of  them  then  and  there, 
otherwise  so  negligently,  carelessly,  and 
recklessly  conducted  themselves,  and 
were  guilty  of  such  carelessness  and 
negligent  acts,  omissions,  and  conduct, 
that  by  reason  thereof,  and  by  reason  of 
all  the  aforesaid  negligent,  reckless,  and 
careless  acts  and  omissions  of  the  de- 
fendants, and  each  and  every  of  them, 
this  plaintiff  was  suddenly  caused  to 
lose  his  footing,  and  his  feet  were 
caused  to  be  thrown  from  under  him, 
and  he  was  suddenly  and  violently 
thrown  and  caused  to  fall,"  etc.:  Chris- 
tiansen v.  Chicago  etc.  R.  Co.,  107  Minn. 
341,  120  N.  W.  300,  301.  See  Clark  v. 
Chicago  etc.  R.  Co.,  28  Minn.  69,  9  N. 
W.  75. 

13.  SPECIFIC  PLEADING  OF  NEG- 
LIGENCE.— Doctrine  as  to. — Where  the 
plaintiff  pleads  negligence  specifically,  a 
recovery,  if  any  is  had,  must  be  upon  the 
specific  acts  alleged;  but  this  is  not  true 
where  the  petition  alleges  general  negli- 
gence. The  case  then  falls  within  the 
doctrine  of  res  ipsa  loquitur:  Price  v. 
Metropolitan  S.  R.  Co.,  220  Mo.  435,  119 
S.  W.  932,  937,  132  Am.   St.  Rep.  588. 

14.  Allegations  specially  pleaded  must 
be  proved. — "Where  negligence  is  speci- 
fied in  a  petition  as  a  cause  of  action, 
the  pleaded  specifications  must  be  sub- 
stantially proved  as  alleged,  or  some  one 
out  of  the  several  specifications  consti- 
tuting the  cause  of  action  must  be 
proved  as  alleged  in  order  to  recover: 
Newlin  v.  St.  Louis  etc.  R.  Co.,  222  Mo. 
375,  121  S.  W.  125,  130;  Evans  v.  Wabash 
K.  Co.,  222  Mo.  435,  121  S.  W.  36,  42; 
Brown    v.    Chicago   etc.    R.    Co.,    59   Kan. 


70,  52  Pac.  65;  Telle  v.  Leavenworth  etc. 
R.  Co.,  50  Kan.  455,  31  Pac.  1076. 

15.  If  the  plaintiff  by  his  petition  is 
shown  to  be  so  sufficiently  advised  of 
the  exact  negligent  acts  causing  or  con- 
tributing to  his  injury  as  to  plead  them 
specially,  then  the  reason  for  the  doc- 
trine of  presumptive  negligence  has  van- 
ished. If  he  knows  the  negligent  act, — 
and  he  admits  he  does  so  know  it  by 
pleading  it  in  his  petition, — then  he 
must  prove  it,  and  if  he  recovers,  it 
must  be  upon  the  negligent  acts  pleaded, 
and  not  otherwise:  Evans  v.  Wabash  R. 
Co.,  222  Mo.  435,  121  S.  W.  36,  42,  quot- 
ing from  Roscoe  v.  Metropolitan  St.  R. 
Co.,  202  Mo.  576,  101  S.  W.  32. 

16.  The  very  act  of  negligence  pleaded 
must  be  proven  if  a  specific  act  is  al- 
leged: Gardner  v.  Metropolitan  etc.  R. 
Co.,  223  Mo.  389,  122  S.  W.  1068,  1077, 
and  cases  cited. 

17.  Effect  of  pleading  specific  acts.— 
Charging  specific  acts  of  negligence  re- 
lied upon  for  a  recovery  is  equivalent  to 
stating  that  there  are  not  other  acts  of 
the  company  which  caused  or  contrib- 
uted to  the  injury;  and  if,  after  stating 
his  cause  of  action,  the  plaintiff  is  per- 
mitted to  introduce  evidence  of,  and  re- 
cover upon,  another  and  different  cause 
not  stated  in  the  petition,  the  defendant 
would  thereby  be  taken  by  surprise,  and 
would  not  be  prepared  to  meet  the  new 
issues  thus  presented:  Beave  v.  St. 
Louis  Transit  Co.,  212  Mo.  331,  111  S. 
W.  52;  Evans  v.  Wabash  R.  Co.,  222  Mo 
435,  121  S.  W.  36,  42. 

18.  DAMAGES.— Specific  pleading  of 
items.— The  following  averments  in  a 
complaint  specifically  pleading  items  of 
damages  claimed  are  held  to  be  suf- 
ficient: "Chattels  and  effects  lost  and 
destroyed  by  the  sinking  of  a  boat, 
$381.65;  expenses  incurred  and  paid  out 
for  raising  the  boat,  $544.85;  loss  of 
profits  and  earnings  of  boat  and  pile- 
driver  for  twenty-seven  days  while  out 
of  use  and  being  raised  and  repaired,  at 
$25.00  per  day,  $675.00;  special  injury 
and  damage  to  boiler  caused  by  collision, 
$100.00":  Carscallen  v.  Coeur  d'Alene 
etc.  T.  Co.,  15  Idaho  444,  98  Pac.  622. 

19.  Damages  to  an  infant  such  as  are 
personal  to  himself  may  be  recovered, 
notwithstanding  a  recovery  by  his  par- 
ent for  any  damages  the  latter  has  sus- 


1544 


NEGLIGENCE.— MISCELLANEOUS. 


[Tit.  XIII. 


tained:    Durkee  v.  Central  Pacific  R.  Co., 
66  Cal.  388,  38  Am.  Rep.   59. 

20.  DEFENSES.— In  general.— In  ac- 
tions of  negligence,  many  defenses,  ac- 
cording to  the  facts,  are  open  to  the  de- 
fendant. He  may  plead,  first,  a  general 
denial;  second,  a  plea  of  contributory 
negligence  of  the  plaintiff;  or  third,  in 
case  of  an  action  for  wrongful  death  of 
the  decedent,  that  if  the  plaintiff  (or 
decedent)  was  injured  by  the  negligence 
of  any  one  other  than  himself,  it  was 
that  of  persons  who  were  fellow-serv- 
ants, and  such  risk  was  assumed; 
fourth,  where  the  laws  of  a  state  pro- 
vide the  giving  of  a  notice  of  such  in- 
jury, in  writing,  within  a  specified  time, 
stating  the  time  and  place  thereof,  and 
where  not  given,  the  defense  should  so 
allege;  fifth,  a  general  assumption  of 
risk  upon  the  part  of  the  plaintiff  (or 
decedent) ;  sixth,  where  the  facts  war- 
rant that  defendant's  liability,  if  any, 
depends  upon  and  is  to  be  determined 
by  the  law  of  another  state  (as,  for  ex- 
ample, where  the  injury  resulting  was 
suffered  in  one  state  and  the  action  was 
brought  in  another).  For  a  case  em- 
bodying these  defenses,  see  Newlin  v. 
St.  Louis  etc.  R.  Co.,  222  Mo.  375,  121  S. 
W.   125,   126. 

21.  Contributory  negligence.  —  Nature 
of  defense. — Contributory  negligence  is 
a  plea  in  the  nature  of  a  plea  of  con- 
fession and  avoidance.  It  carries  the 
idea  that  a  cause  of  action  would  exist 
in  favor  of  the  plaintiff  but  for  the  fact 
that  negligence  of  the  plaintiff  co-oper- 
ated with  that  of  defendant  to  produce 
the  injury.  Necessarily,  it  is  an  af- 
firmative defense,  and  the  burden  is  on 
the  defendant  to  plead  and  prove  it  if  he 
would  receive  its  benefits.  An  exception 
to  this  rule  applies  to  cases  where  the 
evidence  introduced  by  the  plaintiff 
shows  that  his  own  negligence  co-oper- 
ated with  the  negligence  of  defendant  to 
cause  the  injury.  In  such  instances,  the 
defendant  is  entitled  to  receive  the  ben- 
efit of  the  defense,  regardless  of 
whether  or  not  it  was  pleaded  in  the 
answer;  but  in  all  other  cases  the  de- 
fense is  waived  if  not  pleaded:  Allen  v. 
Transit  Co.,  183  Mo.  411.  SI  S.  "W.  1142; 
Kaminski  v.  Iron  "Works,  167  Mo.  462,  67 
S.  W.  221;  Ramp  v.  Metropolitan  Street 
R.  Co.,  133  Mo.  App.  700,  114  S.  W.  59,  61. 


22.  Contributory  negligence  must  be 
specially  pleaded. — Contributory  negli- 
gence, if  depended  upon  by  the  defend- 
ant as  a  defense,  must  be  pleaded:  St. 
Louis  etc.  R.  Co.  v.  Philpot,  72  Ark.  23, 
77  S.  W.  901;  St.  Louis  etc.  R.  Co.  v. 
Grimsley,  90  Ark.  64,  117  S.  W.  1064, 
1066. 

23.  The  plaintiff  in  an  action  for  dam- 
ages for  negligence  of  the  defendant  is 
not  required  to  auege  that  he,  or  the 
person  for  whose  injury  or  death  he 
seeks  redress,  was  free  from  contribu- 
tory negligence:  Poor  v.  Madison  R.  P. 
Co.,  38  Mont.  341,  99  Pac.  947,  954.  For 
this  is  a  matter  of  defense:  Schroder  v. 
Montana  Iron  Works,  38  Mont.  474,  100 
Pac.  619,  620,  citing  Cummings  v.  Helena 
etc.  R.  Co.,  26  Mont.  434,  68  Pac.  S52. 

24.  Where  neither  the  pleading  nor  the 
evidence  of  the  plaintiff  develops  con- 
tributory negligence,  it  must  be  pleaded 
to  become  available  as  a  defense:  Mis- 
souri etc.  R.  Co.  v.  Watson,  72  Tex.  633, 
10  S.  W.  731;  Murray  v.  Gulf  etc.  R.  Co., 
73  Texas  6,  11  S.  W".  125;  Perez  v.  San 
Antonio  etc.  R.  Co.,  2S  Tex.  Civ.  App. 
255,  67  S.  W.  137;  Lewis  v.  Texas  etc.  R. 
Co.  (Tex.  Civ.  App.),  122  S.  W.  605,  60G; 
Cahill  v.  Stone  &  Co.,  153  Cal.  571,  96 
Pac.   84,   87. 

25.  Insufficient  pleading  of  contribu- 
tor/ negligence.- — Contributory  negli- 
gence of  the  plaintiff  is  not  pleaded  in 
an  answer  in  an  averment  reading:  "If 
plaintiff  received  any  injuries,  *  *  » 
the  same  were  caused  by  plaintiff's  own 
fault  and  negligence," — for  it  is  held  that 
this  is  a  statement  to  the  effect  that  the 
negligence  of  plaintiff  was  the  sole  cause 
of  her  injury.  This  is  not  equivalent  to 
an  allegation  that  such  negligence  con- 
tributed with  the  negligence  of  the  de- 
fendant to  the  production  of  the  injury. 
The  defense  it  attempts  to  raise  is  one 
the  defendant  had  the  right  to  offer, 
under  a  general  denial,  since  it  in  no 
sense  partook  of  the  nature  of  a  plea  of 
confession  and  avoidance,  but  directly 
negatived  the  very  existence  of  the 
cause  of  action:  Ramp  v.  Metropolitan 
S.  R.  Co.,  133  Mo.  App.  700,  114  S.  W. 
59,   61. 

26.  Burden  of  proof  as  to  contributory 
negligence. — Contributory  negligence  is  a 
defense  to  be  affirmatively  established  by 
the  defendant,  unless  it  Is  shown  or  can 


Ch.  CXI.] 


ANNOTATIONS. 


1545 


be  inferred  from  the  evidence  given  in 
support  of  the  plaintiff's  case.  It  is 
therefore  incumbent  upon  the  defendant 
to  plead  the  same  by  his  answer,  if  he 
desires  to  avail  himself  of  such  defense, 
and  if  he  fails  to  so  plead,  no  finding  in 
relation  to  contributory  negligence  is  re- 
quired: Kenny  v.  Kennedy,  9  Cal.  App. 
350,  99  Pac.  384;  Green  v.  Southern  Pa- 
cific Co.,  132  Cal.  254,  64  Pac.  255;  Cahill 
v.  Stone  &  Co.,  153  Cal.  571,  96  Pac.  84, 
19  L.  R.  A.  (N.  S.)  1094;  Birsch  v.  Citi- 
zens' Electric  Co.,  36  Mont.  574,  93  Pac. 
940;  Smith  v.  Ogden  etc.  R.  Co.,  33  Utah, 
129,  93  Pac.  1S5. 

27.  Contributory  negligence  is  a  matter 
of  defense,  to  be  proved  affirmatively  by 
the  defendant,  and  hence  the  burden  of 
proof  of  such  defense  is  on  him:  Robin- 
son v.  Western  Pacific  R.  Co.,  48  Cal.  409, 
426  (for  personal  injuries — negligence  of 
street  railway  company);  McQuilken  v. 
Central  Pacific  R.  Co.,  50  Cal.  7,  8,  (for 
injuries  to  infant  passenger — negligence 
of  steam  railroad  company) ;  Nehrbas  v. 
Central  Pacific  R.  Co.,  62  Cal.  320,  324, 
(by  parent  for  damages  for  loss  of  five 
minor  children — negligence  of  steam  rail- 
road company  at  crossing) ;  MacDougall 
v.  Central  Pacific  R.  Co.,  63  Cal.  431,  434, 
(for  personal  injuries  to  passenger  suf- 
fered while  in  act  of  alighting — negli- 
gence of  steam  railway  company) ;  Yik 
Hon  v.  Spring  Valley  Water  Works,  65 
Cal.  619,  620,  4  Pac.  666,  (damages  for 
injuries  to  property — negligent  mainte- 
nance of  defective  water-pipes) ;  Magee 
v.  North  Pacific  Coast  R.  Co.,  78  Cal.  430, 
433,  21  Pac.  114,  12  Am.  St.  Rep.  69,  (for 
personal  injuries  to  servant — negligent 
maintenance  of  defective  fence  and  cat- 
tle-guard); House  v.  Meyer,  100  Cal.  592, 
593,  35  Pac.  308,  (damages  for  negli- 
gence). 

28.  Contributory  negligence.  —  Conflict 
of  authorities. — In  many  jurisdictions  it 
is  the  rule  that  contributory  negligence 
is  a  matter  of  defense,  and  that  the  bur- 
den of  establishing  it  is  upon  the  defend- 
ant. Where  this  rule  obtains,  the  plaint- 
iff has  made  his  case  when  he  has  shown 
injury  to  himself,  and  negligence  on  the 
part  of  the  defendant  which  was  the 
proximate  cause  of  it.  It  then  devolves 
upon  the  defendant  to  allege  and  prove 
contributory  negligence  as  matter  of  de- 
fense, the  presumption  being  in  favor  of 
the  plaintiff,  that  he  was  at  the  time  of 


the  accident  in  the  exercise  of  due  care, 
and  that  ).he  injury  was  caused  wholly 
by  the  defendant's  negligent  misconduct. 
This  is  the  doctrine  of  the  supreme  court 
of  the  United  States,  and  it  is  the  rule 
in  Alabama,  California,  Georgia.  Ken- 
tucky, Kansas,  Maryland,  Minnesota, 
Missouri,  New  Hampshire,  New  Jersey, 
Nebraska,  Ohio,  Oregon,  Pennsylvania, 
Rhode  Island,  South  Carolina,  Texas, 
Wisconsin,  West  Virginia,  Vermont,  and 
Colorado,  as  well  as  in  England. 

29.  The  rule  in  some  jurisdictions  is 
that  the  burden  is  upon  the  plaintiff 
in  these  actions  to  show  his  own  free- 
dom from  contributory  negligence.  The 
authorities  in  Massachusetts,  Maine,  Lou- 
isiana, North  Carolina,  Michigan,  Illi- 
nois, Connecticut,  Iowa,  and  Indiana 
support  this  latter  doctrine.  In  a  r 
decision  in  the  supreme  court  of  Idaho, 
the  doctrine  that  contributory  negligence 
is  a  matter  of  defense,  and  that  the  bur- 
den of  establishing  it  is  upon  the  defend- 
ant, is  favored:  Crawford  v.  Bonner's 
Ferry  L.  Co.,  12  Idaho  67S,  87  Pac.  998, 
1000,   10  Am.   &   Eng.   Ann.   Cas.    1. 

30.  A  plea  of  contributory  nealigence 
In  general  terms,  like  a  plea  of  negli- 
gence in  general  terms,  is  good  after 
verdict:  Gardner  v.  Metropolitan  etc.  R. 
Co.,  223  Mo.  3S9,  122  S.  W.  106S,  1076. 

31.  Defense  must  establish  plea. — Con- 
tributory negligence  is  a  matter  for  the 
defense  to  allege  and  establish:  North- 
ern Pacific  R.  Co.  v.  Hess,  2  Wash.  383, 
26  Pac.  866,  867.  See  Hocum  v.  Weithe- 
rick,  22  Minn.  152;  Kansas  etc.  R.  Co.  v. 
Pointer,  14  Kan.  37. 

32.  Failure  to  submit  evidence  in  sup- 
port of  defense. — As  contributory  negli- 
gence is  a  defense  which,  if  established, 
defeats  the  plaintiff's  action,  the  plaint- 
iff can  not  complain  where  the  court 
fails  to  submit  evidence  in  support  cf 
such  defense  to  the  jury:  Hai-alson  v. 
San  Antonio  T.  R.  Co.  (Tex.  Civ.  App.), 
115  S.   W.   876. 

33.  When  plaintiff  waives  pleading  of 
defense. — As  to  whether  contributory 
negligence  is  an  affirmative  defense,  to 
be  specially  pleaded,  or  whether  evidence 
thereof  may  be  given  under  a  general 
denial,  not  decided;  but  where,  on  the 
trial,  evidence  as  to  contributory  negli- 
gence was  given  without  objection,  held 
that  an  objection,  made  later,  on  the 
ground    that    such    negligence    was    not 


1546 


NEGLIGENCE.— MISCELLANEOUS. 


[Tit.  XIII. 


pleaded,  if  such  be  an  objection,  was 
waived  by  the  defendant:  Woodruff  v. 
Bearman  F.  Co.,  108  Minn.  118,  121  N.  W. 
426,  427. 

34.  Defense  of  due  performance  of  duty 
must  appear  either  by  a  direct  traverse 
of  plaintiff's  case  as  to  the  fact  of  in- 
jury or  by  the  proof  that  the  injury  oc- 
curred without  defendant's  particular 
fault:  Wilson  v.  California  C.  R.  Co.,  94 
Cal.  166,  170,  29  Pac.  861,  17  L.  R.  A.  685. 

35.  TRIAL  AND  PROOF.— Negligence 
as  a  question  of  fact. — The  question  of 
negligence  is,  in  general,  a  question  of 
fact,  and  not  of  law,  and  the  verdict  of 
the  jury,  or  finding  of  the  lower  court, 
can  not  be  disturbed  unless  the  lack  of 
negligence  on  the  part  of  the  defendant 
or  the  existence  of  contributory  negli- 
gence on  the  part  of  the  plaintiffs  fol- 
lows necessarily  as  a  conclusion  of  law 
from  the  undisputed  facts:  Schneider  v. 
Market  Street  R.  Co.,  134  Cal.  482,  488,  66 
Pac.  734,  (negligence  of  street  railway 
company) ;  Brown  v.  Los  Angeles  R.  Co., 
2  Cal.  App.  618,  621,  84  Pac.  362,  88  Pac. 
1135.  And  as  to  the  contrary  doctrine, 
Be©  authorities  cited  in  the  same  case. 


36.  Physical  examination  of  plaintiff  by 
defendant's  physicians. — For  authorities 
holding  that  the  trial  court  has  a  right, 
in  its  discretion,  to  make  an  order  re- 
quiring the  plaintiff  to  submit  to  an  ex- 
amination at  the  hands  of  defendant's 
physicians,  see  Murphy  v.  Southern 
Pacific  Co.,  31  Nev.  120;  101  Pac.  322, 
331. 

37.  Right  to  present  evidence  under 
averment  of  legal  conclusion  where  no 
objection  Is  made  to  the  pleading. — In  an 
action  to  recover  damages  for  personal 
injuries  alleged  to  have  been  received  by 
the  plaintiff  as  the  result  of  a  collision 
with  a  street-car,  the  plaintiff  in  his 
petition  alleged  the  fact  that  the  speed 
was  in  violation  of  an  ordinance  in  such 
a  manner  as  rendered  it  a  statement  of  a 
mere  conclusion  of  law;  nevertheless,  if 
no  objection  be  made  to  the  pleading,  the 
court  may  permit  evidence  under  the 
averment  which  would  have  been  com- 
petent had  the  pleading  been  made  more 
specific,  as  it  might  well  have  been  had 
objection  thereto  been  urged  at  the 
proper  time:  Doherty  v.  Des  Moines  C. 
R.  Co.   (Iowa),  121  N.  W.  690,  694. 


Chapter  CXII. 

CXIII. 

CXIV. 

CXV. 

CXVI. 
CXVIL 

CXVIII. 
CXIX. 

cxx. 


TITLE  XIV. 

Actions  for  Wrongs. 

Page 

Slander  of  Title 1547 

Unlawful  Monopolies  and  Conspiracies 1550 

Boycotts  and  Unlawful  Strikes 1555 

Injuries  to  Personal  Property,  and  the  Un- 
lawful Detention  Thereof 1563 

Fraud  and  Deceit 1566 

Fraudulent   Transfers   and   Assignments. — 

Creditors'  Suits 1584 

Conversion  and  Trover 1595 

Trade-Marks  and  Trade-Signs 1606 

Actions  under  Civil  Damage  Acts 1614 


CHAPTER  CXII. 

Slander  of  Title. 

Page 

S  389.  Complaint  [or  petition]    • 1547 

Form  No.  931.  For  slander  of  title.     (Common  form.) 1547 

§  390.  Annotations    1548 


§389.     COMPLAINT  [OR   PETITION]. 

FORM   No.  931 — For  slander  of  title.     (Common  form.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  plaintiff  was  on  the  day  of  ,  19  ,  and  ever 
since  has  been,  the  owner  in  fee  of  a  tract  of  land  situate  in  the 
county  of  ,  in  this  state,  bounded  and  described  as  [here 
describe]  ;  that  on  said  date,  and  while  he  was  so  the  owner  thereof, 
plaintiff  caused  said  land  to  be  offered  and  exposed  for  sale  at  public 
auction  on  said             day  of            ,  19     . 

2.  That  the  defendant,  well  knowing  the  premises,  maliciously, 
and  without  probable  cause,  and  to  cause  it  to  be  suspected  that 
plaintiff  could  not  give  a  good  title  to  said  land,  and  to  prevent 

(1547) 


1548  SLANDER  OF  TITLE.  [Tit.  XIV. 

plaintiff  from  effecting  a  sale  thereof,  did  then  and  there  publicly 
say,  in  the  presence  and  hearing  of  [here  name  the  person  or  per- 
sons], and  of  other  persons  then  and  there  assembled  for  the  purpose 
of  bidding  on  said  property  and  buying  the  same,  concerning  plaintiff 
and  his  said  property,  the  defamatory  matter,  namely:  [Set  forth 
exact  words  uttered,  or  substantially  as  uttered.] 

3.  That  said  defamatory  matter  was  and  is  false  and  malicious, 
and  was  and  is  known  by  defendant  to  be  false. 

4.  That  by  reason  of  the  utterance  of  said  false  and  defamatory 
words  said  and  [naming  the  persons],  who 
attended  at  said  auction  sale  for  the  purpose  of  then  and  there  bid- 
ding for  and  buying  said  land,  were,  and  each  of  them  was,  dissuaded 
and  prevented  from  bidding  for  the  same,  and  refused,  and  still 
refuse,  to  purchase  the  same;  that  the  plaintiff,  by  reason  of  the 
said  acts  and  words  of  defendant,  has  been  unable  to  sell  said  land, 
and  has  been  injured  by  the  aforesaid  acts  of  the  defendant,  in  the 
sum  of  $ 

"Wherefore,  plaintiff  prays  judgment  against  defendant  for  $  , 
and  for  costs  of  this  action. 

[Verification.]  A.  B.,  Attorney  for  plaintiff. 

§390.     ANNOTATIONS.— Slander   of   title. 

1.  Essentials  of  an  action   for  slander  of  title. 

2.  Interest  of  plaintiff  must   be   shown. 

3.  Malice  and  want  of  probable  cause. 

4,  5.  Complaint  must   show   special   damages. 

6.  Damages   must   result  from   slanderous   statement. 

7.  Where  contract  is  binding  upon   intending  purchaser. 

8.  Repetition   of   defamatory   words   by   third   person. 

1.  Essentials  of  an  action  for  slander  damage  is  the  only  ground  upon  which 
of  title. — In  order  to  maintain  an  ac-  the  action  can  be  maintained,  it  is 
tion  for  slander  of  title  the  plaintiff  essential  that  such  damage  be  distinct 
must  show  (1)  he  possesses  an  estate  or  and  particularly  set  out  in  the  corn- 
interest  in  the  property,  (2)  falsehood  plaint:  Edwards  v.  Burrls,  60  Cal.  157, 
and  malice  in  the  utterance  of  slander  161;  Burkett  v.  Griffith,  90  Cal.  532,  537, 
concerning  it,  and  (3)  a  pecuniary  injury  27  Pac.  527,  25  Am.  St.  Rep.  151,  13  L. 
or  damage   to   plaintiff.  R.    A.    707,    and   note. 

It  is  necessary  to  establish  that  the  2.  Interest  of  the  plaintiff  In  the  prem- 
words  spoken  were  false,  and  were  ma-  ises  must  be  shown  from  the  petition; 
liciously  spoken  by  the  defendant,  and  otherwise,  it  is  deficient:  Stark  v.  Chit- 
also  that  the  plaintiff  has  sustained  wood,  5  Kan.  141,  145. 
some  special  pecuniary  damage  as  the  3.  Malice  and  want  of  probable  cause 
direct  and  natural  result  of  their  hav-  must  be  averred  to  sustain  the  action: 
ing  been  so  spoken.  As  words  spoken  Stark  v.  Chitwood,  5  Kan.  141. 
of  property  are  not  in  themselves  ac-  4.  Complaint  must  show  special  dam- 
tionable,  it  is  necessary  to  allege  the  ages. — In  order  to  maintain  the  action 
facts  which  show  wherein  the  plaintiff  for  slander  of  title,  it  is  necessary  to 
has    sustained    damage;    and    as    special  establish    that    the    words    spoken    were 


Ch.  CXIL] 


ANNOTATIONS. 


1549 


false,  and  were  maliciously  spoken  by 
the  defendant,  and  also  that  the  plaint- 
iff had  sustained  some  special  pecuni- 
ary damage  as  the  direct'  and  natural 
result  of  their  having  been  so  spoken. 
As  words  spoken  of  property  are  not  in 
themselves  actionable,  it  is  necessary 
to  allege  the  facts  which  show  wherein 
the  plaintiff  sustained  damage;  and  as 
special  damage  is  the  only  ground  upon 
which  the  action  can  be  maintained,  it 
is  essential  that  such  damage  be  dis- 
tinctly and  particularly  set  out  in  the 
complaint:  Burkett  v.  Griffith,  90  Cal. 
532,  537,  27  Pac.  527,  25  Am.  St.  Rep, 
151,  13  L.  R.  A.  707,  citing  Linden  v. 
Graham,  1  Duer  (N.  Y.)  670;  Swan  v. 
Tappan,    5   Cush.    104. 

5.  Special  damages  constitute  the  gist 
of  an  action  in  the  nature  of  one  for 
slander  of  title;  therefore,  where  the 
complaint  is  deficient  in  alleging  such 
damages,  it  is  demurrable:  Wilson  v. 
Dubois,  35  Minn.  471;  29  N.  W.  68;  59 
Am.  Rep.  335. 

6.  Damages  must  result  from  slander- 
ous statement. — The  utterance  of  a 
mere  falsehood,  however  malicious,  will 
not  sustain  the  action  unless  damage 
has  resulted  therefrom,  and  the  damage 
which  can  be  recovered  is  only  such  as 
is  the  direct  and  natural  result  of  the 
utterance     of     the     worda.       Therefore, 


where  a  complaint  fails  to  show  that 
the  statements  and  declarations  alleged 
to  have  been  made  by  the  defendant 
could  have  caused  any  damage  to  the 
plaintiff,  a  demurrer  thereto  is  properly 
sustained:  Burkett  v.  Griffith,  90  Cal. 
532,  541,  27  Pac.  527,  25  Am.  St.  Rep. 
151,    13    L.    R.    A.    707. 

7.  Where  contract  is  binding  upon  In- 
tending purchaser. — Where  the  complaint 
shows  upon  its  face  that  the  intending 
purchaser  is  still  bound  by  the  contract 
to  purchase,  such  complaint  fails  to 
show  that  the  plaintiff  has  sustained 
any  damage:  Burkett  v.  Griffith,  90  Cal. 
532,  540,  27  Pac.  527,  25  Am.  St.  Rep. 
151,   13   L.    R.   A.   707. 

8.  Repetition  of  defamatory  words  by 
third  person. — The  originator  of  defam- 
atory words  respecting  plaintiff's  title 
is  not  liable  for  subsequent  repetition 
of  those  words  by  another  without  his 
direction  or  authority:  Burkett  v.  Grif- 
fith, 90  Cal.  532,  542,  27  Pac.  527,  25  Am. 
St.  Rep.  151,  13  L.  R.  A.  707,  citing  Par- 
kin v.  Scott.  1  Hurl  &  N.  (Eng.),  153; 
Ward  v.  Weeks,  7  Bing.  (Eng.)  211; 
Terwilliger  v.  Wands,  17  N.  Y.  54;  12 
Am.  Dec.  420;  Gough  v.  Goldsmith,  44 
Wis.  262,  2S  Am.  Rep.  579;  Hastings  v. 
Stetson,  126  Mass.  329,  30  Am.  Rep.  683; 
Crain  v.  Petrie,  6  Hill,  522,  41  Am.  Dec. 
765. 


1550  MONOPOLIES  AND  CONSPIRACIES.  [Tit.  XIV. 


CHAPTER  CXIII. 

Unlawful   Monopolies  and  Conspiracies. 

Page 

§  391.  Complaints   [or  petitions]    1550 

Form  No.  932.  For  damages  for  conspiracy  to  injure  business.     1550 
Form  No.  933.  For  damages  for  conspiracy  to  injure  business 

of  a  butcher  1551 

Form  No.  934.  Averment  of  damages  for  conspiracy  of  whole- 
sale merchants  in  restraint  of  trade 1553 

§  392.  Answer 1553 

Form  No.  935.  Defense  averring  right  to  regulate  the  business 
of  defendants  to  prevent  ruinous  competition 
of  rates,  in  action  for  alleged  conspiracy  of 
underwriters 1553 


§391.     COMPLAINTS   [OR  PETITIONS]. 

FORM   No.  932 — For  damages  for  conspiracy  to  injure  business. 

(In  Ertz  v.  Produce  Exchange,  79  Minn.  140;  81  N.  W.  737;  79  Am. 
St.  Rep.  433;  48  L.  R.  A.  90.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  That  plaintiff  is  now,  and  for  two  and  a  half  years  past  has 
been,  engaged  at  the  city  of  M.  in  the  business  of  a  commission 
merchant,  buying  and  selling  farm  produce  and  commodities. 

2.  That  his  profits  from  his  business  prior  to  the  committing  of  the 
wrongs  hereinafter  stated  by  the  defendants  were  $20,000  per  year; 
that  to  enable  him  to  conduct  his  business  it  has  been  and  it  is  nec- 
essary for  him  to  buy  such  farm  produce  and  commodities  at  M.  and 
resell  the  same  to  his  customers. 

3.  That  defendants  during  the  time  the  plaintiff  has  so  conducted 
his  business  were,  and  still  are,  engaged  in  buying  and  selling  farm 
produce  and  commodities,  and  they  are  practically  all  the  persons, 
firms,  and  corporations  who  are  engaged  in  such  a  business  in  the 
city  of  M.,  and  during  such  time  they  have  controlled,  and  still  do 
control,  regulate,  and  govern  the  quantity  and  price  of  such  farm 
produce  and  commodities  and  the  purchase  and  sale  thereof. 

4.  That  plaintiff,  prior  to  July  19,  1899,  was  accustomed  to  and  did 
purchase  the  product  and  commodities  so  dealt  in  by  him  from  the 


Ch.  CXIII.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1551 

defendants,  and  paid  them  therefor  in  full;  but  on  the  day  above 
named  and  at  various  subsequent  times  the  defendant  The  Produce 
Exchange  conspired,  confederated,  and  agreed  to  and  with  the  other 
defendants  herein  not  to  sell  to  or  to  buy  of  the  plaintiff  any  farm 
produce  or  commodities  for  the  purpose  of  carrying  on  his  business. 

5.  That  the  defendant  The  Produce  Exchange  then  and  there  did 
maliciously  solicit  and  procure  from  all  of  its  co-defendants  and  each 
of  them,  and  from  many  other  persons  to  the  plaintiff  unknown,  an 
agreement  not  to  sell  to  or  buy  from  plaintiff  such  products  and 
commodities,  and  did  so  induce  its  co-defendants  and  each  of  them 
and  other  persons,  by  the  aid  of  and  through  the  influence  of  all  the 
defendants,  not  to  sell  to  or  buy  of  the  plaintiff  any  such  products 
and  commodities  for  the  purpose  of  his  business  or  otherwise. 

6.  That  in  pursuance  of  such  conspiracy  each  and  all  of  the  defend- 
ants have,  with  such  malicious  and  unlawful  intent,  since  July  19, 
1899,  refused  so  to  sell  to  or  buy  of  the  plaintiff,  and  have  daily 
circulated  among  and  reported  to  the  patrons  of  the  plaintiff  that 
he  was  unable  to  buy  such  products  and  commodities,  with  the  intent 
of  inducing  such  patrons  to  discontinue  doing  business  with  the 
plaintiff. 

7.  That  the  business  of  the  plaintiff  by  reason  of  the  premises  has 
been  ruined,  and  he  has  been  damaged  in  the  sum  of  $25,000. 

[Concluding  part.] 

FORM   No.  933 — For  damages  for  conspiracy  to  injure  business  of  a  butcher. 
(In  Delz  v.  Winfree,  80  Tex.  400;  16  S.  W.  Ill;  26  Am.  St.  Rep.  755.) 
[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 
That  plaintiff  at  the  time  hereinafter  stated  was  pursuing  the  occu- 
pation of  a  butcher  in  the  city  of  Galveston,  and  was  making,  and 
would  have  continued  to  make,  large  profits  and  gains  in  the  busi- 
ness, but  for  the  grievances  committed  by  the  defendants  as  herein- 
after alleged ;  that  in  the  prosecution  of  his  business  he  had  opened 
and  was  conducting  two  butcher-shops  in  said  city  for  the  sale  of 
different  kinds  of  fresh  meat ;  that  it  became  necessary  that  he  should 
buy  live  animals  suitable  and  fit  to  be  slaughtered  for  the  purposes 
of  his  business  as  a  butcher,  and  for  a  long  time  before  and  at  the 
time  of  the  commission  by  the  defendants  of  the  grievances  herein 
stated  he  was  engaged  in  the  business  of  buying  live  animals  suitable 


1552  MONOPOLIES  AND  CONSPIRACIES.  [Tit.  XIV. 

and  fit  to  be  slaughtered  and  sold  as  fresh  butchers'  meat,  and  which 
he  slaughtered  and  sold  as  such  at  his  said  two  butcher-shops;  that 
the  persons  from  whom  the  plaintiff  bought  said  live  animals  were 
engaged  in  the  business  of  transporting  to  Galveston,  and  receiving 
for  sale  live  animals  suitable  and  fit  to  be  slaughtered  and  sold  as 
butchers'  meat,  and  in  selling  such  live  animals  for  such  purposes  to 
whomsoever  would  buy;  that  long  before  and  at  the  time  of  the 
commission  of  the  wrongs  herein  charged  the  defendants  W.  N.  &  P. 
and  B.  &  B.  were  engaged  as  separate  firms  in  said  business  of 
receiving  and  selling  live  animals  for  the  purpose  aforesaid  on 
Galveston  Island,  and  were,  and  are  now,  the  only  persons  or  asso- 
ciation of  persons  so  engaged  in  said  business  in  Galveston  County; 
that  without  justifiable  cause  and  unlawfully,  and  with  the  malicious 
intent  to  molest,  obstruct,  hinder,  and  prevent  plaintiff  from  carry- 
ing on  his  said  business  and  making  a  living  thereby,  the  said  W.  N. 
&  P.,  on  or  about  the  1st  day  of  July,  1889,  and  at  divers  times 
thereafter,  and  until  the  filing  of  this  petition,  did  combine,  confed- 
erate, and  conspire  with  the  said  firm  of  B.  &  B.,  and  with  one  G.  B., 
a  butcher,  not  to  sell  to  petitioner  for  cash  any  live  animals  or 
slaughtered  meat  for  the  purpose  or  for  the  prosecution  of  his  said 
business ;  that  the  said  W.  N.  &  P.  solicited  and  procured  from  said 
B.  &  B.  not  to  sell  any  live  animals  to  plaintiff,  and  did  so  induce 
said  G.  B.,  and  others  to  plaintiff  unknown,  not  to  sell  to  him  slaugh- 
tered meat  for  the  purpose  of  his  business ;  that  in  pursuance  of  said 
combination  each  of  said  firms  refused  to  sell  plaintiff  live  animals 
when  he  applied  to  them  to  purchase  at  their  own  price,  in  money 
which  he  then  offered  to  pay  them,  and  that  said  G.  B.  likewise 
refused  to  sell  him  slaughtered  meat ;  that  by  reason  of  such  unlawful 
combinations  and  malicious  interference  with  his  business,  plaintiff 
was  compelled  to  close  up  and  discontinue  his  business  in  one  of  his 
shops,  and  in  order  to  continue  it  at  the  other  of  his  shops,  he  has 
been,  and  is  now,  forced  to  buy  slaughtered  meat  at  a  great  disad- 
vantage and  at  higher  prices  than  he  would  have  had  to  pay  but  for 
the  aforesaid  unlawful  combination  and  malicious  interference  with 
and  hindrance  of  his  business  by  defendants.  [Averment  as  to  dam- 
ages, etc.] 

[Concluding  part.] 


Ch.  CXIIL]  ANSWERS.— FORMS.  1553 

FORM   No.  934 — Averment  of  damages  for  conspiracy  of  wholesale  merchants 
in  restraint  of  trade. 

(In  Hawarden  v.  Youghiogheny  etc.  Coal  Co.,  Ill  Wis.  545;  87  N.  W. 
472;  55  L.  R.  A.  828.) 

[Title  of  court  and  cause.] 

[After  introductory  part,  and  facts  of  conspiracy  of  wholesalers, 
the  damages  to  the  plaintiff  are  averred  as  follows:]  *  *  *  that 
plaintiff,  E.  H.,  in  September,  1898,  purchased  a  two-thirds  interest 
in  the  established  coal  business  of  J.  B.  C.  and  wife  at  Superior,  and 
all  the  teams,  tools,  office,  and  appliances  used  by  said  C.  and  wife 
in  that  trade;  that  C.  and  wife  had  an  established  retail  trade  in 
coal,  based  upon  the  right  of  any  person  to  go  into  business  and  to 
buy  of  the  wholesalers  at  the  market  price  for  retail ;  that  H.  and  C. 
carried  on  the  business  until  June,  1900,  when  H.  bought  out  C,  and 
the  good-will  of  the  business ;  that  the  profits  of  their  business  during 
the  seasons  from  September  to  June  were  $40  a  month,  and  that  the 
profits  from  September,  1900,  to  April  1,  1901,  would  have  been  $55 
a  month;  that  as  the  result  of  said  conspiracy  plaintiff,  H.,  was 
forced  out  of  the  business  and  his  trade  destroyed,  and  he  thereby 
suffered  damages  in  the  sum  of  $500. 

[Concluding  part.] 

§392.     ANSWER. 

FORM  No.  935 — Defense  averring  right  to  regulate  the  business  of  defend- 
ants to  prevent  ruinous  competition  cf  rates,  in  action  for 
alleged   conspiracy   of   underwriters. 

(In  Continental  Ins.  Co.  v.  Board  of  Underwriters  of  the  Pacific, 
67  Fed.  (C.  C.)  310.) 

[Title  of  court  and  cause.] 

[After  introductory  part,  denials  of  formation  of  conspiracy 
among  underwriters,  etc.] 

1.  Defendants  allege  that  said  board  of  underwriters  was  created 
for,  and  its  object  is,  to  regulate  the  business  of  its  members,  and  to 
prevent,  whenever  possible  by  arrangement  between  themselves,  a 
ruinous  competition  of  rates,  and  that  they,  in  common  with  other 
companies,  have  attempted,  and  do  attempt,  to  obtain  business  for 
their  respective  offices,  and  seek  to  obtain  business  which  is  placed 
in  other  offices,  and  that  such  conduct  is  now  and  always  has  been 
followed  by  the  plaintiff.     *     *     * 


1554  MONOPOLIES  AND  CONSPIRACIES.  [Tit.  XIV. 

2.  Defendants  aver  that  they  have  done  no  act,  and  do  not  con- 
template any  act,  which  will  damage  the  plaintiff  other  than  such 
as  may  arise  from  competition,  and  that  the  acts  of  the  defendants 
have  been  done  as  individuals  to  protect  respectively  their  business- 
against  competition  offered,  and  have  not  been  done  under  any 
conspiracy  or  combination  whatsoever;  that  the  object  of  their  asso- 
ciation is  to  promote  the  safety  and  success  of  their  business ;  that  it 
is  voluntary  and  is  not  designed  to  admit  or  exclude  from  its  mem- 
bership the  plaintiff  or  any  person  or  to  compel  it  or  other  companies, 
to  join  the  same. 
[Concluding  part.] 

For  form  of  an  information  in  the  nature  of  quo  warranto  by  a  state  in  an  action 
instituted  to  obtain  the  forfeiture  of  a  charter  and  to  revoke  the  license  of  a  foreign 
corporation  to  do  business  where  the  said  corporation  is  alleged  to  have  entered 
into  an  unlawful  trust  and  combination  against  the  laws  of  the  state,  prohibited  by 
what  is  known  as  the  anti-trust  statutes,  see  State  ex  inf.  Hadley,  Attorney-Gen- 
eral, v.  Standard  Oil  Co.,  218  Mo.  1,  116  S.  W.  902,  907-912. 

For  form  of  judgment  and  decree  under  anti-trust  statutes  dissolving  an  unlaw- 
ful conspiracy  and  enjoining  the  continuance  thereof,  see  State  ex  inf.  Hadley, 
Attorney-General,  v.  Standard  Oil  Co.,  218  Mo.  1,  116  S.  W.  902,  1052,  set  out  in 
the  dissenting  opinion  in   the  reported  case. 

For  form  of  findings  of  fact  and  conclusions  of  law  reported  to  the  court  on  a 
legal  proceeding  in  the  nature  of  quo  warranto  under  the  "anti-trust  statutes," 
see  State  v.  Standard  Oil  Co.,   218  Mo.  1,  116  S.  W.   902,   981-1005. 

For  illegal  combinations  within  Sherman  anti-trust  act,  see  note,  2  Am.  &  Eng. 
Ann.  Cas.  956-960. 

Anti-trust  actions.— For  an  exhaustive  review  of  federal  and  state  anti-trust 
statutes,  and  of  the  scope  of  decisions  thereon,  see  State  v.  Duluth  Board  of  Trade, 
107  Minn.   506,   121  N.  W.  395-415,   23  L.   R.  A.    (N.   S.)    1260. 

Anti-trust  statutes  designed  to  restrain  the  formation  of  unlawful  trusts,  combi- 
nations, and  conspiracies  in  restraint  of  trade,  under  the  laws  of  the  state  of  Mis- 
souri, and  found  in  Revised  Statutes  1S99,  arts.  1,  2,  ch.  143,  (Ann.  Stats.  1906,  pp. 
4150-4153  and  4157,)  and  the  provisions  thereof  (§§  8965,  8966,  8971,  8978),  set  out  in 
full  and  construed  in  State  ex  inf.  Hadley,  Attorney-General,  v.  Standard  Oil  Co., 
21S  Mo.   1,   116  S.   W.   902,   1006-1007,   1011,   1012,   1018. 

State  anti-trust  statutes  enumerated  in  State  v.  Duluth  Board  of  Trade,  107 
Minn.  506,   121  N.  W.  395,  407,   23  L.  R.  A.    (N.   S.)   1260. 

The  mere  fact  of  a  conspiracy  can  not  be  made  the  subject  of  a  civil  action. 
Conspiracy  merely  gives  the  persons  injured  a  remedy  against  parties  not  other- 
wise connected  with  the  wrong.  It  is  only  significant  as  constituting  matter  of 
aggravation,  and  as  such  tending  to  strengthen  the  plaintiffs  right  of  recovery. 
Repeated  allegations  of  conspiracy  between  defendants  have  therefore  but  little 
significance,  unless  in  addition  there  is  stated  a  concrete  cause  of  action:  Remmera 
V.  Remmera.  217  Mo.  541,  117  S.  W.  1117,  1121. 


Ch.  CXIV.] 


COMPLAINTS  [OR  PETITIONS].— FORMS. 


1555 


CHAPTER    CXIV. 

Boycotts  and    Unlawful    Strikes. 

Page 

S  393.  Complaints  [or  petitions]    1555 

Form  No.  936.  Against  labor   union,   to   restrain   interference 

with  conduct  of  business    1555 

Form  No.  937.  To  enjoin  a  combination  and  conspiracy  to  boy- 
cott, where  known  and  fictitious  parties  are 

sued 1560 

§  394.  Decree 1561 

Form  No.  938.  In  an  action  to  enjoin  a  combination  and  con- 
spiracy to  boycott   1561 


§393.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  936 — Against   labor  union,  to   restrain   interference  with   conduct 
of  business. 

(In  Crescent  Feather  Co.  v.  United  Upholsterers'  Union,  153  CaL 

433;  95  Pac.  871.) 

[Title  of  court.] 

The  Crescent  Feather  Company,  a 

corporation,  plaintiff, 
v. 
The   United   Upholsterers'  Union, 

local  No.  28,  C.  Buhman,  J.  Con- 

nell,   C.   Nelson,   A.   Nelson,   B. 

Rosenthal,  H.  C.  Timnis,  and  P. 

Clawson,  defendants. 

Plaintiff  complains  of  defendants,  and  for  cause  of  action  alleges  t 
1.  That  at  all  times  herein  mentioned  the  United  Upholsterers' 
Union,  local  No.  28,  was,  and  now  is,  an  association  of  persons  formed 
and  composed  of  upholsterers  employed  in  the  manufacturing  of 
mattresses  and  bedding  at  various  places  in  the  city  and  county  of 
San  Francisco,  and  is  generally  known  as  a  labor  union,  and  that  at 
all  of  said  times  C.  Buhman  was,  and  he  still  is,  the  president,  and 
J.  Connell  was,  and  he  still  is,  the  secretary,  and  that  defendants  C. 
Nelson,  A.  Timms,  and  P.  Clawson  were  and  are,  respectively,  mem- 
bers thereof. 


1556  BOYCOTTS  AND  STRIKES.  [Tit.  XIV. 

2.  That  at  all  times  herein  mentioned,  and  since  the  6th  day  of 
May,  1902,  plaintiff  has  been,  and  now  is,  a  corporation  duly  organ- 
ized and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
California,  with  its  principal  place  of  business  at  No.  405  Jackson 
Street,  in  the  city  and  county  of  San  Francisco,  state  of  California ; 
that  the  principal  business  carried  on  and  done  by  said  plaintiff  at 
said  place  of  business  at  all  times  herein  mentioned  has  been,  and 
now  is,  the  manufacturing  of  mattresses,  bedding,  and  upholstered 
goods,  and  the  selling  of  the  same  to  various  patrons  and  customers 
with  whom  plaintiff  has  established  business  relations,  and  with  the 
public  in  general,  upon  whose  patronage  and  trade  plaintiff  depends 
for  its  existence. 

3.  That  plaintiff  at  all  times  herein  mentioned  has  employed,  and 
is  now  employing,  about  seventy-five  workmen,  which  said  number 
of  workmen  is  necessary  for  the  proper  conduct  of  its  said  business ; 
that  on  or  about  the  5th  day  of  October,  1904,  a  walking  delegate,  or 
representative  of  said  union,  called  upon  the  manager  of  plaintiff, 
at  its  said  place  of  business,  and  informed  plaintiff  through  said 
manager  that  six  men,  all  members  of  said  union,  who  were  then  in 
the  employ  of  plaintiff,  must  quit  and  abandon  the  employ  of  plaint- 
iff, for  the  reason  that  said  six  men  would  not  work  in  the  same 
establishment  with  workmen  who  were  not  members  of  said  union, 
and  that  all  other  employees  of  plaintiff,  with  the  exception  of  said 
six  men,  were  non-union  workmen;  that  if  plaintiff  would  not  dis- 
charge all  his  non-union  mattressmakers  and  employ  none  but  mat- 
tressmakers  who  were  members  of  said  union,  that  said  union  would 
call  out  on  a  strike  the  said  six  men,  members  as  aforesaid  of  said 
union,  and  that  said  union  would  declare  a  boycott  against  the 
plaintiff  and  against  the  business  of  plaintiff,  and  would  not  allow 
any  of  the  members  of  said  union  to  enter  or  remain  in  the  employ 
of  plaintiff;  that  thereupon  plaintiff  through  its  said  manager  noti- 
fied the  said  representative,  or  walking  delegate,  of  said  union  that 
it  declined  and  refused  to  comply  with  the  said  demand,  and  would 
reserve  the  right  to  employ  any  one  whom  it  pleased,  provided  said 
persons  were  willing  to  enter  the  employment  of  plaintiff  and  could 
do  the  work  required. 

4.  That  upon  the  refusal  of  plaintiff  to  comply  with  the  demands 
made  as  aforesaid  by  said  walking  delegate  or  representative  of 
said  union,  and  in  order  to  coerce  plaintiff  to  the  subjection  of  its 


CL.  CXIV.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1557 

said  business  to  the  control  of  said  union  and  the  members  thereof, 
the  said  union  inaugurated  and  declared  a  boycott  upon  the  said 
place  of  business  of  plaintiff,  and  did  then  and  there  carry  out  its 
threat,  and  did  call  out  on  a  strike  the  said  six  men,  members  as  afore- 
said of  said  union,  and  said  men  thereupon  quit  and  abandoned  the 
employ  of  plaintiff,  and  since  said  time  have  not  been  in  such 
employment  with  plaintiff,  though  all  of  said  six  men  have  visited 
the  manager  of  plaintiff,  and  informed  plaintiff,  through  said  mana- 
ger, that  they  were  willing  and  anxious  to  again  enter  and  remain 
in  the  employment  of  plaintiff,  but  were  afraid  to  do  so  by  reason 
of  the  fact  that  they  feared  violence  at  the  hands  of  said  union  and 
certain  members  thereof  if  they  entered  the  employment  of  plaintiff 
at  any  time  when  said  boycott  was  being  carried  on. 

5.  That  on  or  about  the  5th  day  of  October,  1904,  the  defendants 
entered  into  a  combination,  confederation,  and  conspiracy  for  the 
purpose  of  coercing  plaintiff  to  subject  the  control  of  its  business  to 
the  said  United  Upholsterers'  Union,  local  No.  28,  and  certain  mem- 
bers thereof,  by  inaugurating  and  declaring  a  boycott  on  the  said 
business  of  plaintiff,  and  thereupon,  and  on  the  5th  day  of  October, 
1904,  in  pursuance  of  said  unlawful  combination,  confederation,  and 
conspiracy,  placed  and  continued  to  place  representatives  or  pickets 
in  the  vicinity  of  the  place  of  business  of  plaintiff,  and  that  said  rep- 
resentatives or  pickets  at  all  times  intercept,  interfere,  molest, 
intimidate,  and  frighten  the  non-union  employees  of  plaintiff,  and 
endeavor  by  threats  of  doing  violence  to  the  persons  of  said  em- 
ployees to  prevent  them,  the  said  non-union  employees,  from 
remaining  in  the  employ  of  plaintiff;  that  said  pickets  have 
approached,  and  continue  to  approach,  the  said  non-union  employees 
of  plaintiff,  and  have  informed,  and  continue  to  inform,  said  non- 
union employees  that  if  they  remain  in  the  employ  of  plaintiff  they 
will  meet  with  great  bodily  injury;  that  said  pickets  and  representa- 
tives so  stationed  as  aforesaid  have  informed  several  employees  of 
plaintiff  as  follows:  "You  had  better  quit  the  employment  of  the 
Crescent  Feather  Company  or  we  will  fix  you"  (meaning  thereby 
that  unless  said  non-union  employees  of  plaintiff  quit  said  employ- 
ment, said  pickets  and  representatives  would  inflict,  or  cause  to  be 
inflicted,  on  said  non-union  employees  great  and  serious  physical 
violence). 

Jury's  PI.— 99. 


1558  BOYCOTTS  AND  STRIKES.  [Tit.  XIV. 

6.  That  in  furtherance  of  the  said  unlawful  combination,  confed 
eration,  and  conspiracy  of  defendants,  defendants,  in  addition  to  ora) 
notice  given  to  the  employees  of  plaintiff  hereinbefore  mentioned, 
sent  to  the  various  patrons  and  customers  of  plaintiff  the  following 
notice,  to  wit: 

[Union  Sign.] 

San   Francisco  Local  No.    28, 
of  the 
Upholsterers' 
International   Union   of  North   America, 
Affiliated  with  the  American  Federation  of  Labor. 
Oct.  6,  1904.     Gentlemen:    We  beg  leave  to  inform  you  that  the  Crescent  Feather 
Co.,   manufacturing  mattresses  and  bedding,  have  had  a  boycott  placed  upon  them 
by    the    upholsterers'    union,    on    account    of    locking    out    all    the    mattressmakers 
employed  in  their  factory,   which  is  a  direct  violation  of  their  agreement   entered 
into  with  the  upholsterers  and  mattressmakers  of  this  city.    All  we  ask  of  you  is 
to    withdraw    your   patronage    from    said   firm,    until    such    time    as    they    shall    re- 
establish the  conditions  they  agreed  to  live  up  to  prior  to  locking  the  men  out.     By 
so   doing  you   will   oblige   the   upholsterers   and   mattressmakers   of   your    city,    and 
assist  us  in  maintaining  reasonable  conditions. 

Hoping  you  will  look  upon  this  favorably,   we  remain, 

Very   truly   yours,    United   Upholsterers'    Union, 

Local  No.  28,   San  Francisco. 

C.     Buhman,     Pres. 
J.    Connell,    Sec. 

7.  That  in  furtherance  of  said  combination,  confederation,  and 
conspiracy,  the  defendants  have  conspicuously  posted  in  many 
public  places  in  the  city  and  county  of  San  Francisco  the  following 
poster  or  card: 

BOYCOTT. 
Crescent  Feather   Co.,    manufacturer   of   mattresses,    bedding   and   pillows.     Don't 
buy   mattresses    made    by   the    Crescent   Feather   Co. 

[Signed]     United  Upholsterers'   Union  of  San  Francisco. 
[Label] 

8.  That  subsequent  to  the  5th  day  of  October,  1904,  and  since  the 
said  boycott  so  ordered  as  aforesaid  by  said  union,  the  said  union 
and  the  members  thereof  have  conspired,  confederated,  and  com- 
bined among  themselves  and  with  other  parties  to  the  plaintiff 
unknown,  and  will  continue  to  conspire,  confederate,  and  combine 
among  themselves  and  with  other  parties  to  the  plaintiff  unknown, 
to  provide  means  and  methods  for  impeding  the  plaintiff  in  the  con- 
duct and  transaction  of  its  aforesaid  business,  to  interfere,  by 
means  of  threats  and  intimidations,  with  employees  not  members 
of  said  union  employed  by  said  plaintiff,  who  are  engaged  in  the  line 
of  work  similar  to  that  of  the  said  members  of  said  union,  and  to  gen- 
erally impede  and  obstruct  the  plaintiff  in  carrying  on  its  aforesaid 


Ch.  CXIV.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1559 

business,  and  by  threats  and  intimidations,  by  reason  of  placing 
pickets  or  representatives  in  the  vicinity  of  the  said  place  of  business 
of  plaintiff,  compel  and  force  the  said  employees  engaged  as  afore- 
said with  plaintiff  to  quit  and  abandon  the  service  of  plaintiff. 

9.  That  the  defendants,  in  furtherance  of  their  said  unlawful  com- 
bination, confederation,  and  conspiracy,  continue  to  place  repre- 
sentatives or  pickets  in  the  neighborhood  and  vicinity  of  the  place  of 
business  of  said  plaintiff,  and  that  said  representatives  or  pickets 
are  so  stationed  for  the  purpose  not  only  of  inducing,  but  intimidat- 
ing, the  non-union  employees  of  plaintiff  to  quit  its  service,  and  are 
for  the  purpose  of  intimidating  patrons  and  customers  of  plaintiff 
who  may  desire  to  attempt  to  do  business  with  the  plaintiff;  that 
since  the  said  representatives  or  pickets  so  placed  as  aforesaid  in 
front  of  the  said  place  of  business  of  plaintiff,  and  since  the  said 
notices  and  posters  hereinbefore  set  out  have  been  distributed 
among  the  patrons  and  customers  of  plaintiff,  plaintiff  is  unable  to 
say  how  many  patrons  and  customers  of  plaintiff  have  been  intimi- 
dated by  reason  of  the  presence  of  said  representatives  or  pickets, 
or  by  reason  of  having  received  said  notices  and  having  read  said 
poster  hereinbefore  set  out,  and  prevented  thereby  from  patronizing 
the  plaintiff,  but,  on  its  information  and  belief,  plaintiff  avers  the 
fact  to  be  that  many  persons  and  customers  of  said  plaintiff  have 
been,  and  now  are,  frightened  and  intimidated  from  entering  the 
place  of  business  of  plaintiff  by  reason  of  the  fact  that  representa- 
tives and  pickets  of  said  union  are  stationed  as  aforesaid  in  the 
neighborhood  of  the  business  of  plaintiff,  and  by  reason  of  the  said 
notices  and  poster  hereinbefore  set  out. 

10.  That  the  said  pickets  or  representatives  of  said  union  are  still 
engaged  in  the  acts  herein  complained  of,  and  threaten  to  continue 
the  commission  of  the  acts  and  each  of  the  said  acts  to  the  irreparable 
damage  and  injury  of  this  plaintiff,  and  that  as  a  consequence  of 
the  acts  herein  set  forth,  plaintiff  has  already  been  damaged  in  the 
sum  of  $1,000,  and  if  the  said  acts  continue,  and  the  defendants 
threaten  to  continue  the  said  acts  as  hereinbefore  alleged,  plaintiff 
will  be  irreparably  damaged  and  his  business  will  be  greatly  injured 
if  not  destroyed. 

11.  That  plaintiff  is  without  any  plain,  speedy,  or  adequate  rem- 
edy at  law,  or  without  any  remedy  or  relief  other  than  an  order  and 
injunction  of  this  court  enjoining  each  and  all  of  the  said  acts,  and 


1560  BOYCOTTS  AND  STRIKES.  [Tit.  XIV, 

enjoining  the  defendants  from  the  commission  of  any  and  all  of 
said  acts. 

12.  That  the  defendants,  and  each  and  all  of  them,  are  financially 
irresponsible  to  respond  to  any  judgment  for  damages  against  them 
for  and  on  account  of  the  commission  of  the  acts  or  any  of  them  here- 
inbefore alleged  to  have  been  committed  and  threatened  to  be  com- 
mitted by  defendants. 

Wherefore,  plaintiff  prays :  That  the  defendants,  their  agents, 
attorneys,  representatives,  and  servants,  be  perpetually  restrained 
and  enjoined  from  the  performance  of  the  said  acts  and  each  of  the 
acts  hereinbefore  complained  of,  and  from  in  any  manner  interfer- 
ing with  plaintiff  in  the  conduct  of  its  business,  and  restraining  and 
enjoining  the  defendants,  and  each  and  all  of  them,  from  causing 
any  person  or  persons,  any  agent  or  agents,  any  representative  or 
representatives,  any  picket  or  pickets,  to  be  stationed  in  the  vicinity 
or  neighborhood  of  the  said  place  of  business  of  plaintiff,  or  from 
otherwise  at  any  time  or  times  impeding,  harassing,  annoying, 
threatening,  intimidating,  or  interfering  with  any  person  or  persons 
transacting  business  with  plaintiff,  or  from  sending  the  customers 
and  patrons  of  plaintiff  the  said  notices  hereinbefore  set  out,  or  from 
posting  in  any  conspicuous  place  or  otherwise  the  said  poster  or 
card  hereinbefore  set  out,  and  for  costs,  and  for  such  other  and 
further  relief  as  the  court  may  deem  just. 

Bush  Pinnell, 

[Verification.]  Attorney  for  plaintiff. 

FORM    No.  937 — To  enjoin   a  combination   and  conspiracy  to   boycott,  where 
known  and  fictitious  parties  are  sued. 

(In  Goldberg-Bowen  Co.  v.  Stablemen's  Union,  149  Cal.  429;  86  Pac. 

806;  117  Am.  St.  Rep.  145;  8  L.  R.  A.  (N.  S.)  460;  9  Am.  &  Eng. 

Ann.  Cas.  1219.) 

[Title  of  coart  and  cause.] 

Plaintiff  complains  of  defendants,  and  for  cause  of  action  alleges : 

1.  That  at  all  the  times  mentioned  the  Stablemen's  Union,  local 
No.  8760,  was,  and  now  is,  an  association  of  persons  formed  and  com- 
posed of  stablemen  employed  in  the  various  livery  stables  and  pri- 
vate stables  in  the  city  and  county  of  San  Francisco,  and  generally 
known  as  a  labor  unior;,  and  that  at  all  of  said  times  T.  F.  Finn  was 
the  president  and  T.  J.  White  the  secretary,   and  that  they  and 


Ch.  CXIV.]  DECREE,  ETC.— FORMS.  1561 

defendants  First  Doe,  Second  Doe,  [etc.],  were  and  are,  respectively, 
members  thereof. 

2-4.   [Substantially  as  in  paragraphs  2-4,  preceding  form.] 

5.  That  on  or  about  the  3d  day  of  October,  1904,  the  said  defend- 
ants entered  into  a  combination,  confederation,  and  conspiracy,  for 
the  purpose  of  coercing  plaintiff  to  subject  the  control  of  its  business 
to  the  said  Stablemen's  Union,  local  No.  8760,  and  the  members 
thereof,  by  inaugurating  and  declaring  a  boycott  of  the  said  busi- 
ness of  said  plaintiff,  and  thereupon,  and  on  the  3d  day  of  October, 
1904,  in  pursuance  of  said  unlawful  combination,  confederation,  and 
conspiracy,  placed,  and  continued  to  place,  representatives  or  pickets 
in  front  of  the  said  places  of  business  of  plaintiff,  carrying  placards 
or  transparencies  which  were  false  in  fact,  bearing  the  words  and 
figures  as  follows,  to  wit :  ' '  Unfair  firm ;  reduced  wages  of  employees 
50c  per  day.    Please  don't  patronize." 

6-10.  [Substantially  as  in  paragraphs  8  to  12,  inclusive,  preceding 
form.] 

11.  That  defendants  First  Doe,  Second  Doe,  [etc.],  are  each  and  all 
members  of  said  Stablemen's  Union,  local  No.  8760,  and  that  their 
true  names  are  unknown  to  plaintiff  and  therefore  they  are  herein 
sued  by  fictitious  names,  and  that  plaintiff  prays  that  the  true  names 
of  said  last-named  defendants,  when  ascertained,  may  be  inserted 
herein  in  lieu  of  said  fictitious  names. 

[Concluding  part.] 

§394.     DECREE. 

FORM   No.  938 — In    an    action    to    enjoin    a    combination    and    conspiracy    to 
boycott. 

(In   Goldberg-Bowen  Co.   v.   Stablemen's  Union,   149  Cal.   429;   86 

Pac.  806;  117  Am.  St.  Rep.  145;  8  L.  R.  A.  (N.  S.)  460;  9  Am.  & 

Eng.  Ann.  Cas.  1219.) l 

[Title  of  court  and  cause.] 

This  cause  coming  on  regularly  to  be  heard  on  the  22d  day  of 
December,  1904,  upon  the  complaint  of  plaintiff,  the  Stablemen's 
Union,  local  No.  8760,  of  San  Francisco,  T.  F.  Finn,  T.  J.  White, 
First  Doe,  Second  Doe,   [etc.],  having  refused  to  answer  when  the 

l  The  decree  appearing  in  form  No.  938,  in  the  case  of  Goldberg-Bowen  Co.  v. 
Stablemen's  Union,  supra,  was  written  out  by  the  court,  modifying  the  judgment 
of  the  trial  court,   and   the  said  decree  was  affirmed  as  so  modified. 


1562  BOYCOTTS  AND  STRIKES.  [Tit.  XIV. 

demurrer  of  defendants  to  plaintiff's  complaint  was  overruled  by 
this  court,  and  Bush  Finnell  appearing  for  plaintiff,  and  there  being 
no  appearance  for  defendants  on  this  hearing,  and  the  findings  of 
fact  and  conclusions  of  law  having  heretofore  been  signed  and  filed, 
and  it  appearing  that  plaintiff  is  entitled  to  a  perpetual  injunction 
as  prayed  for  in  its  complaint  against  the  defendants,  the  Stable- 
men's Union,  local  No.  8760,  T.  F.  Finn  and  T.  J.  White,  et  al.  Now, 
therefore : 

It  is  ordered,  adjudged,  and  decreed,  that  the  Stablemen's  Union, 
local  No.  8760  of  San  Francisco,  T.  F.  Finn  and  T.  J.  White,  and 
all  and  each  of  the  defendants  herein,  and  each  of  their  officers, 
members,  agents,  clerks,  attorneys,  and  servants,  be  and  they  are 
hereby  enjoined  and  restrained  from  interfering  with  or  harassing 
or  obstructing  plaintiff  in  the  conduct  of  its  business  at  any  of  its 
places  of  business,  to  wit,  No.  432  Pine  Street  and  No.  965  Sutter 
Street,  and  No.  232  Sutter  Street,  in  the  city  and  county  of  San 
Francisco,  state  of  California,  by  causing  any  agent  or  agents,  rep- 
resentative or  representatives,  or  picket  or  pickets,  or  any  person 
or  persons,  to  be  stationed  in  front  or  in  the  immediate  vicinity  of 
said  places  of  business,  or  any  of  them,  or  by  a  placard  or  transpar- 
ency, having  on  it  the  words  and  figures  as  alleged  in  the  complaint 
herein,  or  by  a  placard  or  transparency  having  words  or  figures  of 
similar  import,  and  from,  at  said  places  of  business,  or  in  front  of 
them  or  any  thereof,  or  in  the  immediate  vicinity  thereof,  by  means 
of  pickets  or  transparencies,  or  otherwise,  threatening  or  intimidat- 
ing any  person  or  persons  transacting  or  desiring  to  transact  busi- 
ness with  said  plaintiff,  or  being  employed  at  said  place  or  places  of 
business  by  the  plaintiff. 

Done  in  open  court,  this  22d  day  of  December,  1904. 

J.  C.  B.  Hebbard,  Judge. 


Ch.  CXV.]  COMPLAINTS  LOR  PETITIONS] —FORMS.  1563 


CHAPTER  CXV. 

Injuries  to  Personal  Property,  and  the  Unlawful   Detention  Thereof. 

Page 

5  395.  Complaints   [or  petitions]    1563 

Form  No.  939.  For  malicious  injury  to  property 1563 

Form  No.  940.  For  wrongful  detention  of  personal  property..     1563 

§  396.  Answers 1564 

Form  No.  941.  Denial  of  damage   i564 

Form  No.  942.  Denial  of  taking  or  detention 1564 

§  397.  Annotations    1564 


§395.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  939 — For  malicious  injury  to  property. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

That  on  the  day  of  ,  19     ,  at  ,  the  defendant, 

wilfully  and  maliciously  intending  to  injure  the  plaintiff,  broke  [or 
defaced,  or  mutilated,  or  otherwise  injured  or  destroyed]  goods, 
namely,  [here  describe],  then  and  there  the  property  of  the  plaint- 
iff, and  of  the  value,  before  so  broken  [or  injured  or  destroyed],  of 
$  ;  that  after  said  goods  were  broken  by  defendant  as  afore- 

said, the  same  were  of  no  value  whatever  [or,  if  partially  destroyed, 
state  the  extent  of  the  damage  thereto]  ;  that  by  reason  of  said  acts 
of  the  defendant  the  plaintiff  has  been  damaged  in  the  said  sum 
of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  $  , 

and  plaintiff's  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  940 — For  wrongful  detention  of  personal  property. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 
1.  That  on  the  day  of  ,  19     ,  plaintiff  was  the  owner 

and  in  possession  of  the  following-described  goods  and  chattels, 
to  wit:    [Here  describe  the  same],  of  the  value  of  $  ;  that 

plaintiff  has  ever  since  been,  and  he  now  is,  the  owner  of  said  goods 
and  chattels  and  all  thereof. 


1564  INJURIES  TO  PERSONALTY,  ETC.  [Tit.  XIV. 

2.  That  on  the  day  of  ,  19  ,  and  while  plaintiff  was 
so  the  owner  and  in  possession  of  said  goods  and  chattels,  the  defend- 
ant, without  the  consent  of  plaintiff,  took  said  goods  and  chattels 
from  the  possession  of  plaintiff,  and  ever  since  has  wrongfully  and 
unlawfully  withheld  and  detained,  and  now  wrongfully  and  unlaw- 
fully withholds  and  detains,  the  same  from  plaintiff. 

3.  That  thereafter,  on  the  day  of  ,  19  ,  and  while 
said  goods  and  chattels  were  so  in  possession  of  the  defendant, 
plaintiff  demanded1  of  defendant  the  possession  of  the  same;  but 
defendant  then  refused,  and  he  still  refuses,  to  deliver  the  same  to 
plaintiff,  and  has  ever  since  unlawfully  withheld  the  possession 
thereof  from  plaintiff,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

§396.     ANSWERS. 

FORM   No.  941 — Denial  of  damage. 

[Title  of  court  and  cause.] 

[After  introductory  part  and  appropriate  denials:] 
Defendant  denies  that  plaintiff  has  sustained  damage  in  the  sum 
of  $  ,  or  in  any  sum  whatsoever  [etc.]. 

FORM   No.  942 — Denial  of  taking  or  detention. 

[Title  of  court  and  cause.] 

[After  introductory  part  and  appropriate  denials:] 

Defendant  denies  that  on  the  date  mentioned  in  said  complaint  [or 
petition],  or  at  any  other  time,  or  at  all,  he  took  or  carried  away, 
or  that  he  at  said  or  any  time  or  at  all  detained,  or  that  he  now 
detains  or  withholds,  said  property  or  any  part  thereof  from  the 
plaintiff. 

[Concluding  part.] 

§397.     ANNOTATIONS. 

Pleading  damages  to  trees  and  timber. — In  an  action  to  recover  damages  alleged 
to  have  been  caused  to  trees  and  timber  by  noxious  vapors  and  gases  arising  from 
a  smelter  owned  by  the  defendant  company,  it  is  not  necessary  to  use  the  word 
"noxious"  in  describing  such  vapors  and  gases  in  the  complaint.  It  is  sufficient 
as  to  this  if  such  gases  were  alleged  to  have  actually  destroyed  or  damaged  the 
property:     Johnson  v.   Northport  S.   &  R.   Co.,   50  Wash.   567,   97  Pac.   746,   747. 

Damages  to  matured  fruit  on  trees  and  distinguishing  damages  to  the  trees 
themselves. — In    an    action    brought    under    section    1111    of    the    Missouri    Revised 


l  Averment  of   demand   is   not   essential    to   a   complaint   in   an   action   where    the 
possession  of  defendant  is  wrongful  from   the   beginning. 


Ch.  CXV.]  ANNOTATIONS.  1565 

Statutes  of  1899,  (Ann.  Stats.  1906,  p.  963,)  to  recover  damages  for  an  Injury  to  apple- 
trees  and  the  fruit  thereon,  alleged  to  have  been  caused  by  a  fire  from  one  of 
defendant's  loco-motives;  held,  that  the  measure  of  damages,  where  it  is  disclosed 
that  the  fruit  of  the  trees  had  matured,  and  therefore  could  not  be  considered  as 
a  part  of  the  realty,  but  as  personal  property,  was  the  difference  between  the 
market  value  of  the  damaged  apples  just  before  the  fire  and  their  market  value 
just  after.  A  different  rule  applies  to  the  measure  of  damages  caused  by  the 
injury  to  the  trees  themselves.  Being  attached  to  and  sustained  by  the  soil,  they 
were  part  of  the  land — were  real,  and  not  personal,  property.  Recoverable  dam- 
ages for  the  injury  to  them  consists  alone  of  the  depreciating  effect  such  injury 
had  on  the  market  value  of  the  land  as  the  same  might  be  determined  by  the 
jury:     Doty  v.  Quincy  etc.  R.  Co.,  136  Mo.  App.  254,  116  S.  W.  1126,  1128. 

Allegation  of  demand — When  form  is  Immaterial. — Where  the  defendant  denies 
the  plaintiff's  title,  and  alleges  title  in  another,  in  an  action  to  recover  possession, 
and  this  appears  affirmatively  by  defendant's  answer,  the  form  in  which  the 
demand  is  averred  in  the  complaint  is  immaterial,  for  the  reason  that  any  kind 
of  a  demand  would,  under  such  circumstances,  be  unavailing:  Richey  v.  Haley, 
138  Cal.  441,  444,  71  Pac.  499. 

Duress  as  defense  in  action  for  property  unlawfully  detained. — A  party  may 
recover  money  paid  under  duress,  but  it  must  appear,  in  an  action  for  the  posses- 
sion of  property  unlawfully  detained,  that  he  was  compelled  to  pay  the  money 
which  was  detained  as  a  condition  to  the  delivery  of  possession  of  the  property 
so  detained,  that  such  detention  was  unlawful,  that  the  payment  was  made  under 
protest,  and  that  such  detention  was  attended  by  circumstances  of  hardship  and 
inconvenience  to  the  plaintiff:  O'Brien  v.  Quinn,  35  Mont.  441,  90  Pac.  166,  167; 
Fargusson  v.  Winslow,  34  Minn.  384,  25  N.  W.  942;  Briggs  v.  Boyd,  56  N.  Y.  289; 
Weber  v.  Kirkendall,  44  Neb.  766,  63  N.  W.  35;  Lyman  v.  Lauderbaugh,  75  Iowa 
4S1,  39  N.  W.  812;  Cobb  v.  Charter,  32  Conn.  358,   87  Am.  Dec.   178. 

Third-party  claim  not  required  to  be  alleged. — In  an  action  to  recover  possession 
or  the  value  of  property,  it  is  not  necessary  for  the  plaintiff  to  make  a  verified 
third-party  claim  for  the  property,  under  section  906  of  the  Montana  Code  of  Civil 
Procedure,  or  to  allege  that  he  had  made  such  claim,  as  a  condition  precedent  to 
maintaining  his  action;  and,  particularly,  where  there  is  a  distinct  denial  in  the 
answer  of  plaintiff's  claim  of  ownership  to  the  property  in  controversy:  O'Brien  v. 
Quinn,  35  Mont.  441,  90  Pac.  166,  167,  citing  Richey  V.  Haley,  138  Cal.  441,  71  Pac. 
499,  (holding  that  plaintiff  is  not  required  to  set  out  a  demand  and  right  to  posses- 
sion under  section  689  of  the  California  Code  of  Civil  Procedure, — corresponding 
to  the  above  section  of  the  Montana  Code, — where  the  demand  is  alleged  generally 
in  the  complaint,   and  the  defendant  had  not   denied  the  same). 


1566  FRAUD  AND  DECEIT.  [Tit.  XIV. 

CHAPTER  CXVI. 

Fraud  and  Deceit. 

Page 

§  398.  Code   provisions    1566 

§  399.  Complaints  [or  petitions]    1567 

Form  No.  943.  For   cancelation   of  void   contract  on   grounds 

of  fraud  and  deceit  1567 

Form  No.  944.  For  fraud  in  obtaining  goods  on  credit 1568 

Form  No.  945.  For  fraudulently  procuring  credit  for  another.     1569 

Form  No.  946.  Against  a  vendor,  for  deceit  connected  with  the 

sale  of  land   1569 

Form  No.  947.  To  rescind  contract  for  purchase  of  stock  in- 
duced by  fraud   1570 

Form  No.  948.  For  fraudulently  inducing  subscription  to  stock 
where  device  of  a  secret  agreement  is  em- 
ployed       1572 

Form  No.  949.  For  fraudulently  representing  goods  sold  to  be 

the  property  of  the  seller 1573 

Form  No.  950.  To  rescind  contract  of  exchange  for  fraud....     1573 

Form  No.  951.  To  recover  property  obtained  by  fraud  and  col- 
lusion, and  to  adjudge  plaintiffs  the  owners 

thereof  1575 

§  400.  Answers  1577 

Form  No.  952.  Denial  of  fraud    1577 

Form  No.  953.  Defense  that  the  writing  declared  upon  in  the 
complaint  departed  from  the  oral  agreement 
in  substantial  and  material  respects,  and  was 
entered  into  through  the  false  and  fraudu- 
lent representations  of  the  plaintiff's  agent. 
— Action  to  recover  for  goods  sold  and  deliv- 
ered        1578 

§  401.  Order  and  decree   1579 

Form  No.  954.  Order  to  show  cause  and  preliminary  injunc- 
tion.—jAction  to  rescind  contract  for  fraud..     1579 

Form  No.  955.  Judgment    in    action    to    rescind    contract    for 

purchase  of  stock  induced  by  fraud 1580 

§  402.  Annotations 1581 

§398.     CODE  PROVISIONS. 

Deceit — Liability  of  deceiver. 

California,  §  1709.  One  who  wilfully  deceives  another  with  intent 
to  induce  him  to  alter  his  position  to  his  injury  or  risk,  is  liable  for 
any  damage  which  he  thereby  suffers.     (Kerr's  Cyc.  Civ.  Code.) 


Ch.CXVI.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1567 

The  following  statutes  treat  of  the  name  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5072.     North  Dakota,  Rev.  Codes  1905,  §  5387 
Oklahoma,   Rev.   and  Ann.   Stats.   1903    (Wilson),   §834;    Comp.  Laws   1909, 
(Snyder),  §  1144.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1292. 

Deceit  defined. 

California,  §  1710.  A  deceit,  within  the  meaning  of  the  last  sec- 
tion, is  either: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by  one  who 
does  not  believe  it  to  be  true; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not  true,  by  one  who 
has  no  reasonable  ground  for  believing  it  to  be  true ; 

3.  The  suppression  of  a  fact,  by  one  who  is  bound  to  disclose  it, 
or  who  gives  information  of  other  facts  which  are  likely  to  mislead 
for  want  of  communication  of  that  fact ;  or, 

4.  A  promise,  made  without  any  intention  of  performing  it. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  5073.     North  Dakota,  Rev.  Codes  1905,  §  5388. 
Oklahoma,   Rev.   and   Ann.    Stats.    1903    (Wilson),    §835;    Comp.   Laws    1909 
(Snyder),  §  1145.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1293. 

§399.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  943 — For  cancelation   of  void   contract  on   grounds  of  fraud  and 
deceit. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  owned  a 
farm  situated  in  the  town  of  ,  county  of  ,  state  of  , 
described  as  follows:    [Here  describe.] 

2.  That  the  plaintiff  was  then  old,  infirm,  and  blind,  and  thereby 
wholly  incapacitated  from  attending  to  business,  and  the  defendants 
on  that  day,  fraudulently  taking  advantage  of  the  plaintiff's  said 
incapacity,  procured  him  to  sign  a  certain  writing,  without  the  pay- 
ment to  him  of  any  consideration  therefor,  and  which  writing  they 
falsely  and  fraudulently  represented  to  plaintiff  to  be  a  petition  for 
the  purpose  [here  state;  or  state  any  other  facts  disclosing  the 
fraud]. 


15GS  FRAUD  AND  DECEIT.  [Tit.  XIV. 

3.  That  on  the  day  of  ,  19  ,  the  plaintiff  first  discov- 
ered said  fraud,  and  immediately  [or  state  when]  made  application 
to  the  defendants  for  the  possession  of  said  writing,  or  for  informa- 
tion as  to  its  exact  contents,  but  the  defendants  refused  to  surrender 
the  same,  or  to  give  him  any  information  concerning  it. 

4.  That  the  plaintiff  is  informed  and  believes  that  the  said  writing 
is  under  seal,  and  is  a  deed  of  said  farm,  and  conveys  the  same  or 
some  interest  therein  to  the  defendants,  and  that  they  intend  to 
use  the  same  for  their  own  benefit,  and  to  the  prejudice  of  the 
plaintiff. 

Wherefore,  the  plaintiff  prays  judgment  that  the  said  writing  be 
decreed  to  be  void ;  that  the  defendants  produce  the  said  writing, 
and  deliver  it  up  to  be  canceled,  and  for  the  costs  of  this  action. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM    No.  944 — For  fraud  in  obtaining  goods  on  credit. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 

1.  That  on  the  day  of  ,  19  ,  the  defendant,  with  intent 
to  deceive  and  defraud  plaintiff,  by  inducing  plaintiff  to  sell  goods  to 
him  on  credit,  falsely  represented  to  plaintiff  that  the  defendant  was 
solvent,  and  worth  $               over  all  his  liabilities. 

2.  That  on  said  date  the  plaintiff,  relying  on  said  representations, 
was  induced  thereby  to,  and  did,  sell  on  credit,  and  deliver  to  the 
defendant,  the  following-described  goods  and  merchandise :  [Here 
describe],  of  the  value  and  price  of  $  ,  which  price  defendant 
promised  to  pay  within  days  from  the  said  sale  and  delivery 
thereof. 

3.  That  said  representations  were  false  in  this,  [here  state,]  and 
were  then  known  by  the  defendant  to  be  false. 

4.  That  although  the  said  period  in  which  said  goods  and  mer- 
chandise were  to  be  paid  for  has  long  since  expired,  the  same  have  not 
been  paid  for,  and  no  part  of  said  purchase  price  thereof  has  been 
paid;  that  the  defendant,  having  so  obtained  the  possession  of  said 
goods,  converted  and  disposed  of  them  to  his  own  use,  to  the  damage 
of  the  plaintiff  in  the  sum  of  $ 


Ch.  CXVI.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1569 

"Wherefore,  plaintiff  prays  judgment  against  defendant  for  $  , 

and  plaintiff's  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 

FORM   No.  945 — For  fraudulently  procuring  credit  for  another. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant, 
with  intent  to  deceive  and  defraud  the  plaintiff,  represented  to  him 
that  one  L.  M.  was  solvent  and  in  good  credit,  and  worth  the  sum  of 
$              over  and  above  his  liabilities. 

2.  That  the  plaintiff,  relying  upon  said  representations,  was 
induced  to  sell  and  deliver  to  the  said  L.  M.  [designate  the  goods], 
of  the  value  of  $  [on  months' credit]. 

3.  That  said  representations  were  false  in  this,  that  the  said  L.  M. 
was  not  then  and  there  solvent  or  in  good  credit,  or  worth  $ 

over  and  above  all  his  liabilities,  but,  on  the  contrary,  and  as  the 
defendant  then  well  knew,  the  said  L.  M.  was  then  and  there  insolv- 
ent and  not  in  good  credit. 

4.  That  said  L.  M.  has  neglected  and  refused  to  pay  for  said  goods, 
although  the  term  of  credit  aforesaid  has  expired,  and  by  reason  of 
the  premises  the  plaintiff  has  wholly  lost  said  goods,  and  the  value 
thereof,  to  his  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM    No.  946 — Against  a  vendor,  for  deceit  connected  with  the  sale  of  land. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 
1.  That  the  plaintiff,  on  the  day  of  ,  19     ,  made  a  con- 

tract, in  writing,  with  defendant  to  buy  of  and  from  him  a  tract  of 
land  owned  by  the  defendant,  situate  in  ,  and  described  as 

follows:  [Here  follows  description  of  the  same],  which  said  tract 
of  land  the  defendant,  with  intent  to  deceive  and  defraud  the  plaint- 
iff, and  to  induce,  and  which  did  induce,  him  to  enter  into  said  con- 
tract for  the  purchase  of  said  tract  of  land,  falsely  represented  to 
plaintiff  was  [here  state  representations  made]  ;  that  the  defendant 
was  in  a  position  of  advantage  in  respect  to  knowledge  of  said  facts 
in  this,  [here  state  specifically,]  and  that  plaintiff  could  not  by  due 


1570  FRAUD  AND  DECEIT.  [Tit.  XIV. 

diligence  learn  the  truth  in  respect  thereto  [or  allege  any  deceitful 
or  fraudulent  measures  taken  by  the  defendant  which  caused  the 
plaintiff  to  forego  making  an  independent  investigation]  ;  that  the 
plaintiff,  confiding  in  the  truth  of  said  representations,  and  said 
represented  and  supposed  facts  being  an  essential  inducement  to 
said  contract,  entered  into  said  contract  with  the  defendant  to  pur- 
chase from  him  said  tract  of  land,  and  to  pay  him  the  sum  of  $ 
therefor,  and  did,  on  the  day  of  ,  19     ,  pay  the  defendant 

the  said  sum  of  $  therefor. 

2.  That  thereafter,  to  wit,  on  or  about  the  day  of  , 

19  ,  the  plaintiff  first  learned  that  said  representations  were  false, 
and  immediately  sought  restitution,  by  demanding  of  the  defendant 
the  return  of  said  purchase  money,  and  thereupon  tendered  back  to 
the  defendant  a  deed  to  said  property,  reconveying,  or  seeking  to 
reconvey,  thereby  the  estate  and  title  theretofore  conveyed  to  the 
plaintiff  as  aforesaid,  but  that  the  defendant  has  failed  and  refused 
to  make  any  amends  or  restitution  in  respect  to  said  purchase  and 
sale;  that  the  plaintiff  has  sustained  damage  by  said  acts  of  the 
defendant  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  $  , 

and  plaintiff's  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  947 — To  rescind  contract  for  purchase  of  stock  induced  by  fraud. 

(In  Davis  v.  Butler,  154  Cal.  623 ;  98  Pac.  1047.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  alleges : 

1.  On  the  7th  day  of  November,  1905,  the  Salinas  Valley  Bottling 
Company  was,  and  long  prior  thereto  it  had  been,  a  corporation 
regularly  organized  under  the  laws  of  California,  and  engaged  in  the 
business  of  purchasing  beer  in  bulk,  bottling  the  same,  and  market- 
ing and  selling  the  bottled  product,  and  on  said  date  430  shares  of 
the  capital  stock  of  said  corporation,  of  the  par  value  of  $10  each, 
had  been  issued,  and  the  defendant  was  the  owner  of  250  shares  of 
said  capital  stock. 

2.  On  said  7th  day  of  November,  1905,  the  defendant  was,  and  for 
a  long  time  prior  thereto  has  been,  the  general  manager  of  the  busi- 
ness affairs  of  said  corporation,  and  had  full  and  complete  charge 


Ch.  CXVI.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1571 

of  its  business  operations,  and  was  entirely  familiar  with  the  extent 
of  its  indebtedness  and  with  the  business  which  it  had  been  conduct- 
ing and  was  then  transacting,  and  with  the  extent  of  the  profits 
which  it  had  been  and  was  then  deriving  from  the  carrying  on  of  said 
business. 

3-7.  [Here  follow  averments  as  to  contract  for  the  purchase  of 
stock  entered  into;  the  fraudulent  representations  of  defendant 
which  induced  the  plaintiff  to  make  said  contract;  the  means  taken 
by  defendant  to  prevent  an  independent  investigation  concerning  the 
value  of  the  stock ;  the  payments  made  in  cash  and  stock  in  another 
company  therefor,  etc.] 

8.  That  about  January  5,  1906,  the  plaintiff  discovered  that  said 
statements  and  representations  made  by  the  defendant  as  aforesaid 
were  false  and  untrue,  and  he  thereupon  elected  to  rescind  said 
agreement  of  purchase  hereinabove  referred  to,  and  on  the  11th  day 
of  January,  1906,  he  notified  the  defendant,  in  writing,  that  he  had 
rescinded  said  agreement,  and  tendered  to  the  defendant  and  offered 
to  transfer  to  him  said  250  shares  of  stock  hereinabove  referred  to, 
and  demanded  of  the  defendant  that  he  restore  to  plaintiff  the  prop- 
erty and  money  received  by  the  defendant  from  the  plaintiff  as  afore- 
said, but  the  defendant  refused,  and  still  refuses,  to  comply  with 
said  demand. 

9.  That  the  plaintiff  has  received  nothing  whatever  from  the 
defendant  on  account  of  said  purchase  and  sale  except  said  250 
shares  of  stock  hereinabove  referred  to,  and  he  has  received  no 
profits  thereon,  and  said  250  shares  of  stock,  at  the  time  said  transfer 
was  made,  were,  and  are  now,  of  greater  value  than  when  they  were 
transferred  by  defendant  to  plaintiff,  and  a  transfer  by  plaintiff  to 
defendant  of  said  250  shares  of  stock  will  restore  to  defendant  every- 
thing plaintiff  has  received  by  reason  of  the  purchase  thereof  on 
November  7,  1905,  aforesaid,  and  plaintiff  is  now  ready,  able,  and 
willing  to  restore  said  250  shares  of  stock  to  the  defendant,  and  now 
offers  to  do  so. 

Wherefore,  plaintiff  prays  the  decree  of  the  court  that  the  agree- 
ment of  purchase  and  sale  referred  to  in  the  complaint  be  rescinded, 
and  that  defendant  be  required  to  transfer  to  the  plaintiff  the  said 
property  received  by  defendant  from  plaintiff  upon  plaintiff  trans- 


1572  FRAUD  AND  DECEIT.  [Tit.  XIV. 

ferring  to  defendant  said  250  shares  of  stock,  and  for  general  relief 

and  for  costs  of  suit.  _        .  „   T 

Daugherty  &  Lacey, 

[Verification.]  Attorneys  for  plaintiff. 

FORM    No.  948 — For    fraudulently     inducing     subscription     to     stock     where 
device  of  a  secret  agreement  is  employed. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendants,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  defendants  falsely  and 
fraudulently  represented  to  the  plaintiff  that  they  had  organized  a 
company  under  the  name  of  the  Company,  of  which  the  defend- 
ants were  officers,  and  that  said  company  owned  a  certain  valuable 
right  [here  describe]  ;  and  that  various  individuals,  to  wit,  [naming 
them,]  well  known  as  men  of  character  and  pecuniary  responsibility, 
had  taken  shares  of  stock  in  said  company. 

2.  That  the  plaintiff,  relying  on  said  representations,  subscribed 
for  shares  of  the  capital  stock  in  said  company,  and  paid  the 
defendants  therefor  $  ,  in  a  negotiable  note,  which  was  trans- 
ferred by  the  defendants  before  maturity  to  a  bona  fide  holder,  and 
the  plaintiff  was  compelled  to  and  did  pay  said  note. 

3.  That  the  defendants,  for  the  purpose  of  cheating  and  defraud- 
ing the  plaintiff  and  others,  had  devised  and  carried  out  the  scheme 
of  organizing  said  company,  and  had  procured  the  aforesaid  individ- 
uals and  others  to  become  apparent  stockholders,  under  the  secret 
agreement  that  they  were  not  to  be  called  upon  for  payment  for  their 
stock,  but  that  any  notes  given  by  them  in  payment  were  to  be  given 
up  after  being  used  to  induce  others  to  subscribe,  and  they  were  so 
given  up. 

4.  That  plaintiff  has  tendered  back  to  the  defendants  all  cer- 
tificates of  stock  received  by  him  [or  money  or  other  property, 
specifying],  and  demanded  a  return  of  said  note  or  the  value  thereof, 
but  that  defendants  refused,  and  still  refuse,  to  either  accept  said 
certificates  or  to  return  said  note,  or  to  repay  plaintiff  the  value 
thereof.  [Or  allege  the  fact,  if  no  certificates  of  said  stock  were 
ever  delivered  to  or  received  by  the  plaintiff.] 

5.  That  said  stock  is  utterly  worthless,  and  said  pretended  valua- 
ble right  [to  make  and  sell  the  said  articles]  is  also  worthless;  all 
whereof  is  to  the  plaintiff's  damage  in  the  sum  of  $ 

[Concluding  part.] 


Ch.  CXVI.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1573 

FORM   No.  949 — For  fraudulently  representing  goods  sold  to  be  the  property 
of  the  seller. 

[Title  of  court  and  cause.] 

[After  introductory  part,  allegation  as  to  the  sale  of  goods  and 
false  and  fraudulent  representations  made  by  defendant  as  to  his 
title  and  right  to  sell  the  same ;  reliance  of  the  plaintiff  upon  such 
representations  and  purchase  of  the  goods  by  him ;  the  amount  paid 
therefor;  and  the  knowledge  of  defendant  as  to  the  falsity  of  such 
representations :] 

That  on  the  day  of  ,  19     ,  one  X.  Y.  brought  an  action 

[in  this  court]  against  plaintiff  to  recover  said  goods  or  the  value 
thereof,  and  after  due  proceedings  had  therein,  and  after  due  notice 
thereof  given  to  the  defendant  herein,  to  wit,  on  the  day  of 

,19  ,  a  judgment  in  said  action  was  duly  given  and  made  in 
favor  of  the  said  X.  Y.  and  against  this  plaintiff;  that  pursuant  to 
said  judgment  plaintiff  herein  thereupon  restored  said  property  to 
the  said  X.  Y.     [Or  allege  payment  by  plaintiff  of  the  judgment,  etc.] 

That  by  reason  of  the  premises  the  plaintiff  has  been  damaged 
in  the  sum  of  $ 

[Concluding  part.] 

rORM   No.  950 — To  rescind  contract  of  exchange  for  fraud. 

(In  Shopbell  v.  Boyd,  9  Cal.  App.  136;  98  Pac.  69.) 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendants,  and  for  cause  of  action  allegem 

1.  That  on  the  12th  day  of  December,  1905,  and  for  a  long  time 
prior  thereto,  plaintiff  was  the  owner  of  all  that  certain  real  prop- 
erty situate  in  the  city  of  Chicago,  county  of  Cook,  state  of  Illinois, 
and  more  particularly  described  as  follows,  to  wit:  [Here  follows 
description  of  said  real  property.] 

2.  That  on  the  12th  day  of  December,  1905,  plaintiff  entered  into 
an  agreement  with  defendant  Mattie  H.  Boyd,  whereby  she  agreed 
to  exchange  the  said  property  hereinbefore  mentioned  for  certain  real 
property  situate  in  the  city  of  Los  Angeles,  county  of  Los  Angeles, 
state  of  California,  and  described  in  said  agreement  as  No.  1414 
Tennessee  Street,  Los  Angeles,  California,  and  more  particularly  as 
follows,  to  wit:  [Here  follows  description  of  property  in  Califor- 
nia], subject  to  a  deed  of  trust  to  secure  the  payment  of  $1,800,  a 

Jury's  PI.— 100. 


1574  FRAUD  AND  DECEIT.  [Tit.  XIV. 

copy  of  which  said  agreement,  marked  "Exhibit  A,"1  is  attached 
hereto  [etc.]. 

3.  That  plaintiff  was  induced  to  make  said  agreement  upon  the 
false  representations  of  the  defendant  Mattie  H.  Boyd,  and  defend- 
ant J.  Newton  Bunch,  agent  of  said  Mattie  H.  Boyd,  who  repre- 
sented that  the  said  property  owned  by  the  said  Mattie  H.  Boyd  was 
of  the  value  of  $4,000,  and  was  leased  for  one  year  to  a  good  and 
responsible  tenant  at  the  monthly  rental  of  $25  per  month,  and  that 
the  title  to  said  property  was  free  and  clear  of  all  encumbrances^ 
except  said  deed  of  trust  above  mentioned;  that  plaintiff,  believing 
and  trusting  in  the  representations  so  made  by  said  defendants,  and 
believing  that  the  rental  of  said  premises  would  pay  the  instalments 
on  said  deed  of  trust,  and  that  the  title  of  said  property  was  in  said 
Mattie  H.  Boyd,  free  and  clear  of  all  encumbrances  except  said  deed 
of  trust,  was  induced  to  enter  into  said  agreement. 

4, 5.  [Here  follow  averments  as  to  execution  and  exchange  of 
deeds  at  the  instance  and  upon  the  fraudulent  solicitation  of  the 
defendants  pending  the  search  of  title,  the  discovery  of  the  falsity  of 
the  representations  made  by  defendants,  etc.] 

6.  *  *  *  That  as  soon  as  plaintiff  discovered  that  said  repre- 
sentations of  defendants  were  false,  and  that  the  title  to  said  prop- 
erty last  described  was  not  clear  of  encumbrance,  except  as  to  said 
deed  of  trust,  she,  on  the  3d  day  of  February,  1906,  tendered  to  eke 
defendants  herein  a  good  and  sufficient  deed  reconveying  to  said 
Mattie  H.  Boyd  the  said  property  last  described,  and  also  tendered 
the  sum  of  $15,  the  rental  value  of  said  premises  from  the  1st  day  of 
January,  1906,  to  the  1st  day  of  February,  1906,  and  that  the  same 
constituted  everything  of  value  received  by  her  in  the  matter  of  said 
exchange;  that  plaintiff  thereupon,  and  at  the  same  time,  gave 
defendants  notice  of  the  rescission  of  said  agreement,  a  copy  of 
which  said  notice  is  attached  hereto  and  made  a  part  hereof,  and 
marked  "Exhibit  B,"2  and  notified  the  defendants  that  plaintiff  was^ 
and  at  all  times  had  been,  ready,  willing,  and  able  to  do  that  which 
in  equity  and  good  conscience  she  should  do  with  reference  to  the 

1  Exhibit  A  to  the  foregoing  complaint  is  an  ordinary  agreement  for  exchange 
of   property,    the    character   of    which    is    sufficiently    indicated    by    the    complaint. 

2  Exhibit  B  is,  in  brief,  a  notice  of  tender  of  deed  and  rentals  received  by  the 
plaintiff  and  demand  for  return  deed,  and  statement  that  rescission  is  made  upon 
the  ground  of  false  representations  (as  shown  in  the  complaint),  mentioning 
defects  in  title  to  the  Tennessee-Street  property,  closing  with  demand  for  recon- 
veyance of  the  Chicago  property:     Shopbell  v.  Boyd,  9  Cal.  App.  136,  98  Pac.  69. 


Ch.  CXVI.]  COMPLAINTS  [OR  PETITIONS].— FORMS.  1575 

said  premises;  that  at  the  time  plaintiff  tendered  to  defendants 
everything  of  value  that  she  had  received  as  aforesaid  she  demanded 
of  defendants  that  the  deed  to  the  said  Chicago  property,  left  with 
defendant  J.  N.  B.,  be  returned  to  her;  that  defendants  then  and 
there  refused  to  accept  the  said  tender,  and  refused  to  return  the 
said  deed,  and  plaintiff  is  informed  and  believes,  and  therefore 
alleges,  that  the  said  defendants  have  caused  the  said  deed  to  said 
Chicago  property  to  be  recorded  in  the  county  recorder's  office  of  the 
county  of  Cook,  state  of  Illinois,  and  unless  restrained  by  an  order  of 
this  court  that  they  will  dispose  of  said  property,  and  that  plaintiff 
will  be  irreparably  injured  thereby. 

Wherefore,  plaintiff  prays  judgment  and  decree  of  this  court : 

(a)  That  said  agreement  between  the  plaintiff  and  defendants  be 
canceled  and  set  aside. 

(b)  That  defendants,  and  each  of  them,  be  restrained  by  order  of 
this  court  from  conveying  the  said  Chicago  property  or  parting  with 
the  title  thereto  pending  this  action. 

(c)  That  defendants,  or  either  of  them  in  whom  the  title  now 
exists,  be  required  by  order  of  this  court  to  execute  and  deliver  to 
plaintiff  herein  a  good  and  sufficient  deed  reconveying  to  the  plaintiff 
the  said  Chicago  property,  and  for  such  other  and  further  relief  as 
may  be  equitable,  and  for  costs  of  this  action. 

Davis,  Kem>-  &  Post, 
[Verification.]  Attorneys  for  plaintiff. 

FORM   No.  951 — To   recover   property  obtained   by  fraud  and   collusion,  and 
to  adjudge  plaintiffs  the  owners  thereof. 

(In  Boon  v.  Root,  137  Wis.  451;  119  N.  W.  121.) * 
[Title  of  court  and  cause.] 

Plaintiffs  complain  of  defendants,  and  for  cause  of  action  allege : 
That  Lavina  C.  Curtis,  a  resident  of  the  village  of  Rio,  Wisconsin, 
was  prior  to  her  death,  hereinafter  alleged,  an  aunt  of  the  plaintiffs; 
that  on  January  4,  1890,  in  expectation  of  death,  said  Lavina  C. 
Curtis  made,  executed,  and  delivered  a  conveyance  of  lands  [here 
described]  to  her  husband,  Delos  Curtis,  for  the  term  of  his  natural 
life ;  that  after  the  death  of  the  said  Delos  Curtis  said  real  property 

i  The  complaint  in  the  form  No.  951  sets  forth  the  substantial  averments  In  the 
case  as  the  same  appear  In  the  report  thereof:  Boon  v.  Root  137  Wis  451  119 
N.    W.    121.    122. 


1576  FRAUD  AND  DECEIT.  [Tit.  XIV. 

was  to  go  to  the  plaintiffs,  who  were  then  living  with  their  said 
aunt,  the  mother  of  plaintiffs  having  died  in  the  year  1881 ;  that  said 
Lavina  C.  Curtis  died  January  16,  1890;  that  the  conveyance  afore- 
said was  on  February  3,  1890,  recorded  in  the  office  of  the  county 
recorder  of  Columbia  County,  state  of  Wisconsin,  the  same  being 
the  county  in  which  said  lands  are  situated,  and  the  same  remains  of 
record  therein. 

2.  That  the  plaintiffs,  except  Rose  V.  Hoban,  within  a  few  weeks 
after  the  death  of  their  said  aunt,  moved  to  the  home  of  their  father 
in  Chicago,  where  they  and  each  and  all  of  them  have  since  resided ; 
that  said  Rose  V.  Hoban  went  to  her  father's  home  in  June  or  July, 
1890 ;  that,  with  this  exception,  the  plaintiffs  have  resided  in  Chicago 
since  their  said  removal  thither;  that  in  July,  1890,  said  Delos  Curtis 
married  one  Loretta  D.  Root,  a  widow  with  two  children  by  a 
former  marriage;  that  said  Delos  Curtis  failed  and  neglected  to  pay 
the  taxes  assessed  against  said  premises,  in  which  he  held  such  life 
estate,  and,  as  a  consequence  of  said  neglect,  the  said  premises  were 
sold  at  tax  sale  on  the  day  of  ,  1892,  for  the  sum  of 
$12.21,  to  William  H.  Root,  son  of  said  Loretta  D.  Curtis,  formerly 
the  said  Loretta  D.  Root. 

3.  That  on  August  28,  1895,  a  tax-deed  was  issued  to  said  Loretta 
D.  Curtis  as  the  owner  of  the  tax  certificate  issued  to  her  said  son ; 
that  notice  of  said  intention  to  take  a  tax-deed  was  served  on  her 
husband,  but  that  no  notice  thereof  was  given  to  the  plaintiffs  or  any 
of  them ;  that  on  July  22,  1901,  said  Loretta  D.  Curtis  executed  a  life 
lease  of  said  premises  to  said  Delos  Curtis  and  Carrie  M.  Bush,  her 
daughter ;  that  this  lease  was  recorded  August  30,  1901,  in  the  office 
of  the  county  recorder  of  said  county,  state  aforesaid ;  that  on  May 
29,  1903,  said  Loretta  D.  Curtis  executed  a  warranty  deed  of  the  said 
premises,  subject  to  said  lease,  to  the  said  William  H.  Root,  and  that 
said  deed  was  recorded  in  the  office  of  the  county  recorder  of  said 
Columbia  County  on  September  9,  1903. 

4.  Plaintiffs  allege  that  Delos  Curtis  intentionally  omitted  and 
refused  to  pay  the  taxes  assessed  against  the  premises,  and  that  the 
tax-deed  aforesaid  was  procured  by  the  connivance  and  collusion  of 
said  Delos  Curtis,  Loretta  D.  Curtis,  William  H.  Root,  and  Carrie  M. 
Bush,  and  that  said  tax  proceedings  were  taken  for  the  purpose  of 
fraudulently  cutting  off  and  destroying  the  rights  of  the  plaintiffs 
in  the  premises. 


Ch.  CXVI.]  ANSWERS— FORMS.  1577 

5.  That  said  Loretta  D.  Curtis  died  in  the  year  1905,  and  the  said 
Delos  Curtis  died  on  the  23d  day  of  March,  1907. 

6.  Plaintiffs  allege  that  none  of  the  facts  regarding  the  procuring 
of  the  said  tax-deed,  and  the  said  collusion  and  connivance  of  the 
defendants  with  the  defendants'  mother  and  Delos  Curtis  in  fraudu- 
lently securing  said  tax  title  as  aforesaid,  were  known  to  plaintiffs, 
or  any  of  them,  until  after  the  death  of  said  Delos  Curtis;  that 
plaintiffs  had  ahvays  believed  that  he,  said  Delos  Curtis,  as  life 
tenant  under  the  deed  from  said  Lavina  C.  Curtis,  paid  the  taxes  on 
the  premises ;  that  the  plaintiffs,  and  each  and  all  of  them,  never  had 
any  knowledge  or  notice  whatever  that  the  said  taxes  were  not  paid. 

7.  That  said  Carrie  M.  Bush  is  now  in  possession  of  the  premises ; 
and  that  the  said  Carrie  M.  Bush,  with  her  said  brother,  William  H. 
Root,  are  the  sole  heirs  at  law  of  the  said  Loretta  D.  Curtis. 

8.  Plaintiffs  allege  that  they  are  the  owners  of  the  said  premises, 
and  that  the. defendants  claim  an  interest  therein  adverse  to  the 
plaintiffs,  by  and  through  the  said  tax-sale  and  tax-deed,  but  that 
the  said  claim  of  the  defendants  is  inferior  and  subordinate  to  the 
rights  of  the  plaintiffs  as  shown  herein. 

That  plaintiffs  have  tendered  and  offered  to  pay  the  said  "William 
H.  Root  the  said  sum  of  $12.21,  with  interest  from  the  date  of  the 
tax-sale  to  the  time  of  said  tender  and  offer,  and  now  and  herewith 
tender  and  offer  to  pay  said  sum  to  the  said  William  H.  Root,  with 
interest  from  the  date  of  said  tax-sale. 

Wherefore,  plaintiffs  pray  that  the  said  tax  proceedings,  the  said 
life  lease  from  said  Loretta  D.  Curtis  to  said  Delos  Curtis  and  said 
Carrie  M.  Bush,  and  said  conveyance  to  said  William  H.  Root,  be  set 
aside  and  held  for  naught,  and  that  the  defendants  be  required  to 
release  all  their  pretended  interests  in  the  said  premises,  that  plaint- 
iffs be  adjudged  the  owners  thereof,  and  that  defendants  deliver  the 
possession  thereof  to  the  plaintiffs,  and  for  such  other  and  further 
relief  as  the  court  may  deem  just.  "FT  F    A   H 

[Verification.]  Attorney  for  plaintiffs. 

§400.     ANSWERS. 

FORM   No.  952— Denial  of  fraud. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition], 
and  denies: 


1578  FRAUD  AND  DECEIT.  [Tit.  XIV. 

That  he  obtained  the  said  deed  [or  other  instrument]  from  the 
plaintiff  by  fraud  or  misrepresentation.  [Deny  the  particular  alle- 
gations.] 

FORM  No.  953 — Defense  that  the  writing  declared  upon  in  the  complaint 
departed  from  the  oral  agreement  in  substantial  and 
material  respects,  and  was  entered  into  through  the  false 
and  fraudulent  representations  of  the  plaintiff's  agent. — 
Action  to  recover  for  goods  sold  and  delivered. 

(In  Providence  Jewelry  Co.  v.  Crowe,  108  Minn.  84;  121  N.  W.  415.) 

[Title  of  court  and  cause.] 

[After  formal  introductory  part,  denials  of  the  averments  of  the 
complaint  inconsistent  with  this  defense,  and  after  stating  the  terms 
of  the  oral  agreement :] 

That  on  the  said  20th  day  of  March,  1907,  and  immediately  after 
said  oral  contract  and  agreement  was  entered  into  by  and  between 
the  plaintiff,  through  its  agent,  and  the  defendant,  the  plaintiff,  by 
its  agent,  voluntarily  assumed  to  reduce  the  said  oral  contract  to 
writing;  that  plaintiff,  through  its  said  agent,  with  intent  to  cheat 
and  defraud  defendant,  and  for  the  purpose  of  inducing  defendant 
to  sign  said  written  instrument,  pretended  to  reduce  said  oral  con- 
tract to  writing;  that  defendant,  relying  upon  the  honesty  and 
integrity  of  said  agent,  and  believing  that  said  agent  had  reduced 
the  said  oral  contract  to  writing  in  the  exact  terms  of  said  oral  agree- 
ment, and  not  otherwise,  was  induced  to  sign  the  same;  *  *  * 
that  the  said  agent,  for  the  purpose  of  cheating  and  defrauding  this 
defendant,  made  the  aforesaid  writing,  which  is  a  different  contract 
and  agreement  from  the  one  orally  made  by  the  plaintiff,  through  its 
said  agent,  and  defendant,  and  which  said  written  instrument  does 
not  contain  any  of  the  terms  and  conditions  of  said  oral  agreement ; 
that,  depending  upon  the  false  and  fraudulent  statements  of  the  said 
agent  then  and  there  made,  defendant  did  not  read  the  said  written 
instrument  so  reduced  to  writing,  and,  believing  and  relying  upon 
said  written  instrument  containing  the  provisions  and  agreements 
of  the  oral  contract  aforesaid,  and  not  otherwise,  defendant  signed 
the  same  without  any  consideration,  and  without  any  knowledge 
on  his  part  of  the  contents  or  the  purport  thereof;  that  under  the 
belief  on  the  part  of  the  defendant  that  the  said  instrument  so 
signed  was  the  said   oral  contract  hereinbefore  mentioned,  which 


Ch.  CXVI.]  ORDER  AND  DECREE.— FORMS.  1579 

belief  was  induced  by  said  false  and  fraudulent  representations  of 
the  plaintiff,  through  its  agent,  the  defendant  has  never  consented 
to  enter  into  the  contract  or  agreement  set  forth  in  said  complaint. 
[Concluding  part.] 

§401.     ORDER  AND  DECREE. 

FORM   No.  954 — Order  to  show  cause  and  preliminary  Injunction. — Action  to 
rescind  contract  for  fraud. 

(In  Shopbell  v.  Boyd,  9  Cal.  App.  136;  98  Pac.  69.) 

[Title  of  court  and  cause.] 

The  plaintiff  in  the  above-entitled  cause  having  commenced  an 
action  in  the  superior  court  of  the  county  of  Los  Angeles,  state  of 
California,  against  the  above-named  defendants,  and  having  applied 
for  an  order  of  this  court  against  defendants,  requiring  them  to 
refrain  from  certain  acts  in  said  complaint  and  more  particularly 
hereinafter  mentioned;  now,  on  reading  the  said  complaint  in  said 
action,  duly  verified  by  the  oath  of  the  plaintiff,  and  it  satisfactorily 
appearing  to  me  that  this  is  a  proper  case  for  an  injunction  and  that 
sufficient  grounds  exist  therefor: 

It  is  hereby  ordered,  that  you,  Mattie  H.  Boyd  and  J.  Newton 
Bunch,  defendants  in  said  action,  appear  on  Friday,  the  23d  day  of 
February,  1906,  at  the  hour  of  ten  o'clock  A.  M.  of  said  day,  in 
department  3  of  the  superior  court  of  the  county  of  Los  Angeles, 
state  of  California,  at  the  courthouse  in  said  county,  and  then  and 
there  show  cause,  if  any  you  have,  why  an  injunction  should  not  be 
issued  restraining  you  from  disposing  of,  directly  or  indirectly,  or 
transferring  by  deed  or  otherwise,  that  certain  real  property  situate 
in  the  city  of  Chicago,  county  of  Cook,  state  of  Illinois,  and  described 
in  the  complaint  herein,  during  the  pendency  of  this  action. 

And  the  plaintiff  herein,  having  given  an  undertaking  approved 
and  as  required  by  me  in  the  sum  of  $500,  you  and  each  of  you  are 
strictly  commanded  to  refrain  from  disposing  of  or  encumbering, 
directly  or  indirectly,  by  deed  or  otherwise,  the  property  herein- 
before referred  to,  until  the  further  order  of  this  court. 

Dated  this  9th  day  of  February,  1906. 

D.  K.  Trask, 

Judge. 


1 580  FRAUD  AND  DECEIT.  [Tit.  XIV. 

FORM   No.  955 — Judgment  in  action  to  rescind  contract  for  purchase  of  stock 
induced  by  fraud. 

(In  Davis  v.  Butler,  154  Cal.  623;  98  Pac.  1047.) 

[Title  of  court  and  cause.] 

It  is  ordered,  adjudged,  and  decreed  herein,  as  follows: 

That  the  agreement  set  forth  in  the  complaint  whereby  plaintiff 
purchased  from  defendant  250  shares  of  the  capital  stock  of  the 
Salinas  Valley  Bottling  Company,  a  corporation,  be  and  the  same  is 
hereby  rescinded,  canceled,  and  set  aside. 

That  the  plaintiff  recover  of  the  defendant  ten  shares  of  the  cap- 
ital stock,  unencumbered,  of  the  San  Miguel  Flouring  Mill  Com- 
pany, a  corporation,  and  the  sum  of  $360  in  money,  and  the  posses- 
sion of  lots  1,  2,  and  3,  of  block  8,  as  per  Spring's  map  of  Salinas 
City,  Monterey  County,  state  of  California,  and  that  defendant 
recover  of  the  plaintiff  250  shares  of  the  capital  stock  of  the  Salinas 
Valley  Bottling  Company,  a  corporation,  unencumbered;  that  the 
defendant  transfer  to  plaintiff  ten  shares  of  the  capital  stock  of  the 
said  San  Miguel  Flouring  Mill  Company,  unencumbered,  and  the 
certificate  therefor  now  in  possession  of  the  defendant,  with  the 
sum  of  $360  in  money,  and  that  he  execute,  acknowledge,  and  deliver 
to  plaintiff  a  good  and  sufficient  conveyance  of  the  real  property 
hereinabove  described,  free  and  clear  of  encumbrance;  that  until 
said  transfers  are  completed,  and  until  the  final  disposition  of  this 
case,  J.  J.  Kelly  be  and  he  is  hereby  appointed  receiver  to  take  and 
hold  possession  of  all  of  said  property,  upon  giving  an  undertaking 
in  the  sum  of  $500,  as  provided  by  law  (Cal.  Code  Civ.  Proc,  §  567). 
It  is  further  decreed,  that  said  J.  J.  Kelly  be  and  he  is  hereby  ap- 
pointed commissioner  of  this  court,  and,  as  such,  he  is  empowered 
and  directed  to  execute  the  transfers  and  conveyance  herein  referred 
to  upon  the  failure  of  either  party  to  comply  with  this  decree,  when 
the  judgment  in  this  cause  shall  have  become  final;  that  plaintiff 
recover  his  costs  of  suit,  taxed  at  $ 

B.  V.  Sargent, 
Judge  of  Superior  Court. 

For  substance  of  a  complaint  in  an  action  for  equitable  relief  against  fraudulent 
acts  of  the  promoters  of  a  corporation,  see  Wills  v.  Nehalem  Coal  Co.,  52  Ore.  70, 
96  Pac.   528,   530. 

Form  of  complaint  in  an  action  for  obtaining  money  and  property  by  false  and 
fraudulent  representations:     Warner  v.  Bates,   75  Wis.   278,   43  N.  W.   957,   958. 

Form  of  complaint  in  an  action  for  alleged  fraud  and  deceit  in  the  sale  of  mining 
stock:     Barndt  v.   Frederick,   78  Wis.  1,  3,  47  N.  W.  6,  11  L.  R.  A.   199. 


Ch.  CXVI.] 


ANNOTATIONS. 


1581 


Form  of  petition  In  an  action  for  fraud  and  deceit  in  a  transaction  relating  to  a 
timber-culture   claim:     Davis  v.   Jenkins,   46   Kan.    19,    26   Pac.    459. 

Form  of  answer  in  an  action  to  recover  damages  for  fraudulent  representations: 
Warren  v.  Hall,   20  Colo.   508,   509,  38  Pac.   767. 


§402.     ANNOTATIONS.— Fraud  and  deceit. 


1. 
2,3. 

4. 

5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 
13. 
14,  15. 
16. 
17. 
18. 


Essential    allegations. 

Action  for  deceit. — When   maintainable. — Cause   of  action   stated. 

Defendants'    knowledge   of   falsity   must    be   averred. 

Preventing    recovery    on    fraudulent   instrument. 

Specific  pleading  of  fraud. 

General   charge  of  fraud   insufficient. 

Bill   in   equity. — Fraud   in   general   terms. 

Jurisdiction  acquired  by  court  of  law. 

Conclusions  not  pleadable. 

Words    "fraud,"    "unlawful,"    "wilful,"   etc. 

Waiver  as  to  averring  specific  facts. 

Constructive  fraud. — Manner  of  pleading. 

Election  between  remedies  in  cases  of  fraud. 

Defense  that  contract  does  not  conform  to  oral  agreement. 

Fraud  as  defense  must  be  set  up. 

Defense  as  to  value. — When  not  permitted. 


1.  Essential  allegations. — A  complaint 
in  an  action  to  recover  damages  alleged 
to  have  been  caused  by  fraudulent  repre- 
sentations inducing  the  plaintiff  to  pur- 
chase stock  in  a  certain  mining  company 
is  sufficient  where  the  essential  allega- 
tions are  made:  (1)  that  the  representa- 
tions which  induced  the  plaintiff  to  pur- 
chase from  the  defendant  were  made  to 
the  plaintiff  by  the  defendant;  (2)  that 
such  representations  were  false,  and  that 
the  defendant  knew  them  to  be  false; 
and  (3)  that  the  plaintiff  was  deceived 
thereby  to  his  damage  in  a  sum  specified: 
Ford  v.  Freeman,  138  Wis.  503,  120  N.  W. 
234,  235. 

2.  An  action  for  damages  for  deceit  is 
maintainable  where  the  party  is  induced 
to  purchase  an  interest  in  a  property  by 
false  statements  as  to  the  amount  of 
business  done  and  profits  realized  by  the 
sellers  while  they  were  conducting  the 
business:  Del  Vecchio  v.  Savelli,  10  Cal. 
App.  79,  101  Pac.  32,  34;  Markel  v.  Moudy, 
11  Neb.  213,  7  N.  W.  853. 

3.  A  cause  of  action  for  deceit  is  stated 
In  a  complaint  which  sets  forth,  in  sub- 
stance, the  following  facts:  "That  dur- 
ing 1886  the  Swedish-American  Publish- 
ing Company,  a  corporation,  issued  to 
plaintiff  two  shares  of  its  capital  stock, 
for  which  he  paid  $10  each,  being  the  par 
value  thereof;  that  sucb  corporation  was 


engaged  in  publishing  a  newspaper  called 
the  'Svenska  Amerikanska  Posten' ; 
that  from  the  time  of  the  purchase  of 
the  stock  until  1901  defendant  was  the 
managing  director  of  the  company;  that 
some  time  during  1901,  the  exact  date 
being  unknown  to  plaintiff,  defendant 
fraudulently  represented  to  plaintiff  that 
the  stock  which  he,  plaintiff,  had  pur- 
chased was  worthless,  and  that  the  com- 
pany was  in  debt;  that  plaintiff  was  ig- 
norant of  the  true  condition  of  affairs, 
had  no  knowledge  that  the  corporation 
had  at  that  time  disposed  of  the  news- 
paper, and,  having  no  knowledge  of  the 
true  facts,  relied  upon  the  representa- 
tions of  defendant  that  the  same  was  of 
no  value,  and  transferred  said  stock  to 
defendant  at  the  price  for  which  he 
bought  the  same;  that  each  of  such 
shares  of  stock  was  worth  at  that  time 
at  least  the  sum  of  $7,500;  that  by  reason 
of  the  fact  that  plaintiff  had  parted  with 
his  stock  he  was  damaged  in  the  sum 
of  $12,500;  that  on  or  about  June  15, 
1908,  and  immediately  after  discovering 
the  facts  constituting  said  fraud,  plaint- 
iff offered  to  restore  the  consideration  to 
defendant,  rescinded  the  sale,  and  duly 
demanded  that  defendant  return  the 
stock  certificate,  which  he  refused  to  do; 
that  defendant  has  converted  the  shares 
of  stock  to  his  own  use,  and  that  it  will 


15S2 


FRAUD  AND  DECEIT. 


[Tit.  XIV. 


be  useless  to  make  any  further  demand 
for  their  return,"  etc.:  Newstrom  v. 
Turnblad,  108  Minn.  58.  121  N.  W.  236. 

4.  Defendant's  knowledge  of  the  falsity 
must  be  averred. — A  complaint  in  an  ac- 
tion to  recover  damages  alleged  to  have 
been  sustained  by  plaintiff  by  reason 
of  misrepresentations  made  by  defend- 
ant is  insufficient  where  it  does  not  al- 
lege defendant's  knowledge  of  the  falsity 
of  the  representations  made  to  the 
plaintiff,  and  where  it  is  not  alleged  that 
the  representations  were  made  for  the 
purpose  of  inducing  the  plaintiff  to  pur- 
chase the  property:  Colorado  Springs 
Co.  v.  Wight,  44  Colo.  179,  96  Pac.  820, 
822. 

5.  Preventing  recovery  on  fraudulent 
Instrument. — The  law  relieves  against 
fraud  negatively  by  preventing  either  a 
recovery  or  a  defense  founded  upon  an 
Instrument  induced  by  fraud:  Olston  v. 
Oregon  W.  P.  &  R.  Co.,  52  Ore.  343,  96 
Pac.  1095,  1097,  97  Pac.  538,  20  L.  R.  A. 
(N.  S.)  915,  citing  Lamborn  v.  Watson,  6 

Har.  &  J.  (Md.)  252,  255,  14  Am.  Dec.  275. 

6.  Specific  pleading  of  fraud. — The  law 
is  well  settled  that  where  a  party  seeks 
to  recover  on  the  grounds  of  deceit  and 
false  and  fraudulent  representations  he 
must  plead  the  particular  representations 
that  were  made,  and  that  they  were  false 
and  fraudulent  and  material,  and  that 
the  party  injured  believed  and  relied  on 
such  statements,  and  acted  upon  the  be- 
lief and  with  the  understanding  that 
such  false  and  fraudulent  representations 
were  in  fact  true.  He  must  also  show 
the  specific  instances  in  which  they  were 
untrue,  and  in  what  the  untruth  or  de- 
ception consisted:  Kemmerer  v.  Pollard, 
15  Idaho  34,  96  Pac.  206,  207;  Brown  v. 
Bledsoe,  1  Idaho  747;  Watson  v.  Molden, 
10  Idaho  571,  79  Pac.  503;  Specht  v.  Allen, 
12  Ore.  117,  6  Pac.  494;  Kountze  v.  Ken- 
nedy, 147  N.  Y.  124,  41  N.  E.  414,  29  L. 
R.  A.  360,  49  Am.  St.  Rep.  651;  Rothmil- 
ler  v.  Stein,  143  N.  Y.  581,  38  N.  E.  718,  26 
L.  R.  A.  148;  Southern  Development  Co. 
v.  Silva,  125  U.  S.  247,  8  Sup.  Ct.  881,  31 
L.  ed.  678. 

7.  General  charge  of  fraud  Insufficient. 
— A  complaint  charging  fraud  generally, 
but  which  sets  forth  no  facts  support- 
ing the  allegation  of  fraud,  is  insuffi- 
cient: Gill  v.  Manhattan  L.  Ins.  Co. 
<Ariz.),  95  Pac.  S9. 


8.  A  bill  In  equity  charging  fraud  In 
general  terms  is  sufficient  where  some  of 
the  facts  are  pleaded,  and  where  there  is 
no  motion  for  a  more  specific  statement: 
Johnson  v.  Carter  (Iowa),  120  N.  W.  320, 
322;  Harrison  v.  Kramer,  3  Iowa  543; 
Gunsel  v.  McDonnell,  67  Iowa  521,  25  N. 
W.  759. 

9.  Jurisdiction  acquired  by  court  of 
law. — Where  a  court  of  law  has  already 
obtained  jurisdiction  of  a  controversy  in- 
volving an  alleged  fraud,  equity  will  not 
interfere:  Biermann  v.  Guaranty  M.  L. 
I.  Co.,  142  Iowa  341,  120  N.  W.  962,  964, 
citing  Nash  v.  McCathern,  183  Mass.  345, 
67  N.  E.  323;  Eaton  v.  Trowbridge,  38 
Mich.  454;  Sweeny  v.  Williams,  36  N.  J. 
Eq.  627;  Smith  v.  Short,  11  Iowa  523; 
Smith  v.  Griswold,  95  Iowa  684,  64  N.  W. 
624. 

10.  Conclusions  not  pleadable. — Facts 
constituting  fraud,  not  conclusions,  must 
be  alleged;  otherwise,  the  action  or  de- 
fense upon  such  ground  is  ineffectual: 
DuBois  v.  First  National  Bank,  43  Colo. 
400,  96  Pac.  169,  170. 

11.  Words  "fraud,"  "unlawful,"  "wil- 
ful," etc. — The  use  of  the  word  "fraud" 
does  not  enlarge  the  meaning  of  the 
facts  pleaded:  Evert  v.  Tower,  51  Wash. 
514,  99  Pac.  580,  21  L.  R.  A.  (N.  S.)  950. 
Nor  does  the  use  of  the  adjective  "un- 
lawful" add  to  the  strength  of  an  alle- 
gation: Phillips  v.  Smith  (Ariz.),  95  Pac. 
91.  Nor  does  the  use  of  the  adverbs 
"purposely"  and  "wilfully"  add  anything 
to  a  charge  of  concealment  or  fraud: 
Gill  v.  Manhattan  L.  Ins.  Co.  (Ariz.),  95 
Pac.   89. 

12.  Waiver  as  to  averring  specific 
facts. — A  failure  to  allege  particular 
facts  constituting  fraud,  or  estoppel,  or 
other  special  defenses,  may  be  waived 
by  a  failure  to  demur  or  to  object  to  the 
evidence  offered  at  the  trial:  Sukeforth 
v.  Lord,  87  Cal.  399,  403,  25  Pac.  497.  See 
Lee  v.  Figg,  37  Cal.  328,  335,  99  Am.  Dec. 
271;  Hutchings  v.  Castle,  48  Cal.  152,  155; 
Bull  v.  Ford,  66  Cal.  176,  4  Pac.  1175; 
Hughes  v.  Wheeler,  76  Cal.  230,  IS  Pac. 
3S6.  Contra:  Albertoli  v.  Branham,  80 
Cal.  631,  633,  22  Pac.  404,  13  Am.  St.  Rep. 
200. 

13.  Constructive  fraud.  —  Manner  of 
pleading.— Under  the  principle  that  a 
party  must  recover  upon  the  cause  of 
action  pleaded,  and  upon  no  other,  a  dis- 


Ch.  CXVI.J 


ANNOTATIONS. 


1583 


tinction  as  between  pleading  fraud  and 
the  facts  constituting  constructive  fraud 
is  made,  as  follows:  "When  the  former 
is  relied  on,  the  acts  done  must  be  set 
out,  and,  the  intent  being  material,  it 
must  be  averred  that  they  were  done 
fraudulently,  or  with  intent  to  cheat  and 
defraud, — as,  for  example,  in  an  action 
for  fraud  and  deceit.  The  acts  set  out 
may  be  fair  on  their  face.  The  intent 
with  which  done  may  be  fraudulent.  But 
when  the  right  of  recovery  or  relief  is 
founded  on  constructive  fraud,  all  that 
is  necessary,  and  what  must  be  done,  is 
to  plead  the  acts.  With  those  acts 
pleaded,  the  court  will  determine 
whether  the  doing  of  them  worked  a 
constructive  fraud.  In  this  last  class  of 
cases  it  is  not  necessary  to  use  the 
words  "fraud"  or  "fraudulently,"  which, 
when  used,  are  merely  epithets,  and 
therefore  meaningless:  Barrie  v.  United 
Railroads,  138  Mo.  App.  557,  119  S.  W. 
1020,  1050;  Martin  v.  Lutkewitte,  50  Mo. 
58;  McGindley  v.  Newton,  75  Mo.  115; 
Smith  v.  Sims,  77  Mo.  269;  Clough  v. 
Holden,  115  Mo.  336,  353,  21  S.  W.  1071, 
37  Am.  St.  Rep.  393;  Nichols  v.  Stevens, 
123  Mo.  96,  25  S.  W.  578,  27  S.  W.  613, 
45  Am.  St.  Rep.  514;  Nagel  v.  Railway, 
167  Mo.  89,  66  S.  W.  1090;  Mallinckrodt 
Chemical  Works  v.  Nemnich,  169  Mo. 
388,  69  S.  W.  355;  Newman  v.  Trust  Co., 
189  Mo.  423,  444,  88  S.  W.  6. 

14.  Election  between  remedies  in  cases 
of  fraud. — Where  a  party  is  induced  to 
purchase  an  interest  in  a  business  upon 
false  and  fraudulent  representations  as 
to  the  profits  of  such  business,  upon  dis- 
covery of  the  fraud,  he  has  his  election 
to  rescind  the  sale  and  return  the  prop- 
erty, or  to  return  the  property  and  pros- 
ecute his  claim  for  damages  for  false 
and  fraudulent  representations:  Del  Vec- 
chio  v.  Savelli,  10  Cal.  App.  79,  101  Pac. 
32,  34. 

15.  An  election  of  remedies  once  made 
is  conclusive  and  irrevocable:  Gaffney 
V.  Megrath,  23  Wash.  476,  494.  63  Pac. 
520;  Babcock-Cornish  Co.  v.  Urquhart, 
53  Wash.  1GS,  101  Pac.  713,  715;  Conrow 
v.  Little,  115  N.  Y.  387,  22  N.  E.  346,  5 
L.  R.  A.  693;  Robb  v.  Vos,  155  U.  S.  13, 
15  Sup.  Ct.  4,  39  L.  ed.  52. 

16.  Defense  that  contract  does  not  con- 
form   to    oral    agreement. — The    substan- 


tial averments  of  a  defense  that  the  con- 
tract sued  upon  does  not  conform  to  the 
oral  agreement,  and  that  the  execution 
of  the  contract  was  induced  by  false  and 
fraudulent  representations,  are  given  as 
follows: 

1.  The  making  of  the  oral  contract,  and 
the  terms  thereof. 

2.  That  the  plaintiff  assumed  and  un- 
dertook to  reduce  the  oral  contract  to 
writing. 

3.  That  the  plaintiff  pretended  or  held 
out  as  true  that  he  had  done  so. 

4.  That  the  defendant  believed  the  rep- 
resentations of  the  plaintiff  to  the  ef- 
fect that  the  oral  contract  had  been  re- 
duced to  writing,  and,  in  reliance  on  the 
statements  and  representations  of  the 
plaintiff,  signed  the  writing. 

5.  That  the  writing  did  not  in  fact 
state  the  terms  of  the  oral  agreement, 
that  it  was  entirely  different,  or  that  it 
was  a  substantially  different  agreement 
from  the  one  intended. 

6.  That  the  defendant  relied  upon  the 
false  and  fraudulent  statements  of  the 
plaintiff,  not  knowing  the  same  to  be 
false,  and  therefore  and  not  otherwise, 
signed  the  written  agreement:  Provi- 
dence Jewelry  Co.  v.  Crow,  10S  Minn. 
S4,  121  N.  W.  415,   416. 

17.  Fraud  as  a  defense  must  be  set  up. 
— Fraud  must  be  alleged  whenever  it 
constitutes  an  element  of  the  cause  of 
action  or  defense  which  is  of  an  af- 
firmative nature  invoked  as  conferring 
the  right  against  the  plaintiff:  Gray  v. 
Galpin,  98  Cal.  633,  635,  33  Pac.  725. 

IS.  Defense  as  to  value. — When  not 
permitted. — It  is  a  fundamental  princi- 
ple of  the  law  of  fraud  that  where  one 
has,  by  false  and  fraudulent  representa- 
tions as  to  the  quality  of  property,  led 
another  to  believe  it  to  be  possessed  of 
valuable  qualities,  and  thereby  wrong- 
fully induced  the  other  to  buy  the  prop- 
erty, presumably  in  order  to  obtain  the 
benefit  of  property  possessing  those  qual- 
ities, the  seller  will  not  be  allowed  to 
show  as  a  defense  to  an  action  for  such 
fraud  that  the  property,  in  its  actual 
condition,  was  worth  the  price  paid  or 
more:  Spreckels  v.  Gorrill,  152  Cal.  3S3, 
92  Pac.  1011,  1015,  (to  recover  money 
alleged  to  have  been  paid  as  the  price 
of  corporate  stock). 


1584  CREDITORS'  SUITS,  ETC.  [Tit  XIV. 


CHAPTER    CXVII. 

Fraudulent  Transfers  and  Assignments. — Creditors'  Suits. 

Page 
§  403.  Complaints  [or  petitions]    1584 

Form  No.  956.  Creditors'  suit,  by  one  suing  on  behalf  of  him- 
self and  others   1584 

Form  No.  957.  Against  debtor,  to  reach  demands  due  him  from 

third  parties,  and  for  appointment  of  receiver     1585 

Form  No.  958.  Against  judgment  debtor  and  his  assignee,  to 
set  aside  fictitious  assignment  made  to  delay 
and  defraud  creditors  1586 

Form  No.  959.  To    set   aside    fraudulent   conveyance    of    real 

estate  made  by  judgment  debtor 1587 

Form  No.  960.  Against  judgment  debtor,  to  set  aside  fraudu- 
lent judgment  and  sale  1589 

§  404.  Answers  1590 

Form  No.  961.  Denying  return  of  execution    1590 

Form  No.  962.  Denying   possession   of  property   belonging   to 

the  debtor  1590 

Form  No.  963.  Averment  in  defense  that  defendant  has  assets     1590 

Form  No.  964.  Denial  that  conveyance  was  fraudulent 1590 

Form  No.  965.  Defense  that  deed  was  made  for  a  valuable  con- 
sideration.— Action  to  set  aside  an   alleged 

fraudulent  conveyance    1591 

§  405.  Judgments  [or  decrees]   1592 

Form  No.  966.  Confirming  deed  in  action  to  set  aside  the  same 

as  an  alleged  fraudulent  conveyance 1592 

Form  No.  967.  Following  order  sustaining  demurrer  to  com- 
plaint and  refusal  to  amend. — Action  in  the 

nature  of  a  creditor's  bill 1593 

§  406.  Annotations 1593- 


§403.     COMPLAINTS   [OR  PETITIONS]. 

FORM   No.  956 — Creditors'  suit,  by  one  suing  on  behalf  of  himself  and  others. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  on  behalf  of  himself  and  of  all  others,  the 
creditors  of  L.  M.,  who  shall  in  due  time  come  in  and  seek  relief  by 
and  contribute  to  the  expenses  of  this  action,  and  alleges : 

1.  That  the  said  creditors  of  L.  M.  are  very  numerous,  to  wit, 
more  than  in  number;  that  some  of  them  are  unknown  to  the 

plaintiff,  and  can  not  with  diligence  be  ascertained  by  him;  that  it 


Cta-CXVIL]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1585 

is  impracticable  to  bring  them  all  before  the  court  in  this  action; 
wherefore,  plaintiff  sues  for  the  benefit  of  all. 

2.  [Set  forth  cause  of  action  affecting  all  parties  for  whose  benefit 
the  action  is  brought.] 

[Concluding  part.] 

FORM   No.  957 — Against    debtor,    to    reach    demands    due    him    from    third 
parties,  and  for  appointment  of  receiver. 

[Title  of  court  and  cause.] 
[Introductory  part.] 

1.  That  on  the  day  of  ,  19     ,  at  ,  in  the 
court  in  and  for  the  county  of                  ,  in  this  state,  the  plaintiff 
recovered  a  judgment,  which  was  duly  given,  made,  and  rendered 
by  said  court  against  the  defendant  for  $ 

2.  That  on  said  day  said  judgment  was  docketed  in  the  office  of 
the  clerk  of  said  county,  and  on  the  day  of  ,  19  ,  a 
transcript  thereof  was  filed,  and  the  said  judgment  was  docketed  in 
the  clerk's  office  of  the  county  of              ,  in  this  state. 

3.  That  on  the  day  of  ,  19  ,  an  execution  in  due  form 
was  issued  upon  the  said  judgment  against  the  personal  and  real 
property  of  the  defendant,  to  the  sheriff  of  said  county  of  , 
in  which  county  the  defendant  then  resided. 

4.  That  the  said  execution  has  been  duly  returned  by  said  sheriff 
wholly  unsatisfied. 

5.  That  prior  to  the  commencement  of  the  action  in  which  the  said 
judgment  was  obtained,  and  after  the  indebtedness  upon  which  said 
judgment  was  obtained  had  accrued,  the  defendant  was,  and  for 
several  years  previous  thereto  had  been,  engaged  in  mercantile  busi- 
ness at  ,  and,  as  the  plaintiff  is  informed  and  believes,  various 
persons  became  indebted  to  him  in  a  large  amount ;  that  the  defend- 
ant had,  at  the  time  of  the  commencement  of  this  action,  moneys  due 
to  him  to  a  large  amount,  to  wit,  to  an  amount  not  less,  as  the 
plaintiff  is  informed  and  believes,  than  $  ,  a  considerable  por- 
tion of  which  is  evidenced  by  charges  on  his  books  of  account,  which 
the  said  defendant  refuses  to  produce  or  allow  to  be  examined  by  or 
on  behalf  of  the  plaintiff;  that  the  plaintiff  therefore  does  not  know, 
and  is  unable  to  specify,  the  particular  items  or  amount  of  said 
indebtedness,  or  the  names  of  the  several  persons  from  whom  the 
same  are  due;  but  is  informed  and  believes  that  several  of  such 


]586  CREDITORS'  SUITS,  ETC.  [Tit.  XIV. 

persons,   owing  defendant  in  the  aggregate  a  sum  not  less  than 
$  ,  reside  at  ,  and  are  solvent  and  able  to  pay  the 

respective  demands  against  them. 
Wherefore,  the  plaintiff  prays: 

(a)  That  the  defendant  be  adjudged  to  apply  to  the  payment  of 
said  judgment  and  interest  thereon,  together  with  the  costs  of  this 
action,  said  property,  debts,  choses  in  action,  and  equitable  interests 
belonging  to  him,  or  held  in  trust  for  him,  or  in  which  he  is  in  any 
way  or  manner  beneficially  interested. 

(b)  That  he  be  enjoined  from  selling,  transferring,  or  interfering 
with  said  property,  debts,  things  in  action,  and  equitable  interests. 

(c)  That  he  be  prohibited  from  making  an  assignment,  or  confess- 
ing any  judgment,  to  enable  other  creditors  or  persons  to  obtain  a 
preference  over  the  plaintiff,  or  to  take  any  portion  of  the  defend- 
ant's property. 

(d)  That  a  receiver  be  appointed  of  all  said  property,  equitable 
interests,  things  in  action,  and  effects  of  defendant,  and  that  the 
defendant  be  directed  to  execute  to  him  an  assignment  thereof, 
and  that  said  receiver  sell  or  otherwise  dispose  of  the  same,  and  con- 
vert the  same  into  money  as  soon  as  may  be,  and  apply  so  much  of 
the  proceeds  thereof  as  may  be  necessary  for  that  purpose  to  the 
payment  of  the  indebtedness  upon  said  judgment,  with  interest  and 
costs  of  this  action. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 

FORM   No.  958 — Against  judgment  debtor  and  his  assignee,  to  set  aside  ficti- 
tious assignment  made  to  delay  and  defraud  creditors. 

[Title  of  court  and  cause.] 

[Introductory  part.] 

1-4.    [As  in  form  No.  957.] 

5.  That  after  the  contracting  of  the  debt  on  which  the  aforesaid 
judgment  was  recovered,  the  said  Y.  Z.  [judgment  debtor]  executed 
and  delivered  to  the  defendant  W.  X.  an  assignment  of  all  his  prop- 
erty in  trust  for  the  payment  of  his  debts  [of  which  a  copy  is  hereto 
annexed,  marked  "Exhibit  A"  (or  "Schedule  A")]  and  made  a 
part  of  this  complaint  [or  petition],  to  which  assignment  the  said 
"W.  X.  assented  in  writing,  which  assent  was  embraced  therein  [or 
endorsed  thereon]. 


Ch.  CXVII.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1587 

6.  [Aver  recordation  of  such  assignment,  if  the  same  included  real 
property,  or  if,  as  to  any  other  property,  the  law  requires  recording.] 

7.  That  the  said  W.  X.  accepted  said  trust,  and  has  collected  a 
large  sum  of  money  and  other  property  from  the  assets  so  assigned, 
amounting  in  all  to  the  sum  of  more  than  $ 

8.  That  the  said  assignment  was  made  by  the  said  Y.  Z.  with  the 
intent  to  hinder,  delay,  and  defraud  his  creditors;  that  it  was  not 
accompanied  by  an  immediate  and  continued  change  of  possession 
of  the  property;  that  since  the  same  was  executed  and  delivered, 
and  up  to  the  present  time,  the  said  property  has  remained  in  the 
actual  possession  and  under  the  control  of  said  Y.  Z.,  who  has 
retained  possession  and  control  thereof  under  the  false  and  fraudu- 
lent pretense  that  he  is  the  agent  of  said  W.  X. 

9.  That  the  pretended  indebtedness  set  forth  in  said  assignment 
as  due  from  said  Y.  Z.  to  the  defendant  L.  M.  [preferred  creditor], 
is  fictitious;  that  in  fact  no  such  indebtedness  exists,  but  that  the 
same  is  therein  inserted  for  the  purpose  of  enabling  said  Y.  Z.  to 
distribute  the  proceeds  of  the  goods  passed  under  the  assignment 
among  his  friends,  and  thereby  to  keep  possession  and  control 
thereof  himself. 

10.  That  the  defendant  Y.  Z.  has  not  any  other  property  than 
that  embraced  in  the  assignment  aforesaid,  out  of  which  the  said 
judgment  could  be  satisfied  in  whole  or  in  part ;  that  unless  the  said 
property  can  be  reached  and  applied  to  the  payment  of  said  judg- 
ment, the  same  must  remain  wholly  unpaid. 

[Concluding  part.] 

FORM   No.  959 — To  set  aside  fraudulent  conveyance  of  real  estate  made  by 
judgment  debtor. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 
1.  That  on  the  day  of  ,  19     ,  a  judgment  was  duly 

given  and  made  in  and  by  the  court  of  the  state  of  ,  in 

the  county  of  ,  in  favor  of  the  plaintiff  and  against  the  defend- 

ant [naming  the  judgment  debtor] ,  f or  $  ;  that  said  judgment 

was  duly  entered  and  docketed  by  the  clerk  of  said  court  on  the 
same  day.  [That  a  certified  transcript  of  said  docket  of  said  judg- 
ment was  thereafter,  to  wit,  on  the  day  of  ,  19     ,  filed  for 


1588  CREDITORS'  SUITS,  ETC.  [Tit.  XIV. 

record  and  recorded  in  the  office  of  the  county  recorder  of  the 
county  of  in  this  state.] 

2.  That  thereafter  an  execution  was  issued  to  enforce  said  judg- 
ment, dated  and  issued  on  the  day  of  ,  19  ,  delivered 
to  ,  the  sheriff  of  said  county  of  ,  said  county  being  the 
residence  of  the  said  defendant  debtor  at  the  time  of  the  rendition 
of  said  judgment.  [Aver  issuance  of  execution  to  the  sheriff  of  any 
other  county.] 

3.  That  before  this  action  was  commenced,  said  execution  was  [or 
executions  were]  duly  returned  to  said  court  wholly  unsatisfied, 
and  said  judgment  is  now,  and  during  all  times  herein  has  been, 
wholly  unpaid  and  unsatisfied. 

4.  That  on  or  about  the  day  of  ,  19  ,  and  prior  to  the 
entry  of  said  judgment,  but  after  the  indebtedness  upon  which  said 
judgment  was  rendered  had  been  incurred,  the  defendant  [judgment 
debtor] ,  for  the  purpose  of  defrauding  the  plaintiff,  and  to  prevent 
him  from  collecting  the  indebtedness,  conveyed  to  the  defendant 
[transferee],  certain  real  estate  of  said  defendant  [judgment 
debtor],  and  situate  in  said  county  of  ,  in  this  state,  and 
described  as  follows,  to  wit :  [Here  describe]  ;  that  said  real  estate 
was  not  then,  and  never  since  has  been,  exempt  from  execution;  that 
defendant  [transferee]  knew  of  said  indebtedness  of  defendant 
[judgment  debtor]  to  plaintiff,  and  received  said  conveyance  so 
made  with  the  intent  and  purpose  of  defrauding  the  plaintiff,  and 
with  the  intent  and  purpose  of  preventing  the  plaintiff  from  collect- 
ing said  indebtedness  and  the  aforesaid  judgment,  or  any  judgment 
that  might  be  rendered  therein. 

5.  That  there  was  no  consideration  for  said  conveyance  of  said 
real  estate  [if  there  was  a  pretended  or  merely  nominal  considera- 
tion, so  state,  and  allege  facts  showing  the  same  to  have  been  such, 
and  fraudulent]  ;  that  the  defendant  [judgment  debtor]  had,  after 
he  made  said  conveyance,  no  property  standing  in  his  name,  or  any 
other  property,  out  of  which  the  said  judgment  of  plaintiff  could  be 
satisfied  in  whole  or  in  part. 

Wherefore,  plaintiff  prays  judgment  against  the  defendants: 
That  defendant  [transferee]  be  required  to  deliver  up  said  convey- 
ance of  said  real  estate,  and  that  the  same  be  canceled  and  declared 
void,  and  the  record  thereof  of  no  effect  as  against  the  plaintiff 
herein;  that  said  defendants,  and  each  of  them,  be  enjoined  from 


Ch.  CXVIL]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1589 

disposing  of,  transferring,  or  encumbering  said  real  estate;  that  an 
alias  execution  be  issued  out  of  this  court  directed  to  the  sheriff  of 
said  county  of  ,  empowering  and  commanding  him  to  sell  said 

real  estate  to  satisfy  said  judgment,  or  so  much  thereof  as  may  be 
necessary  to  satisfy  the  same;  and  for  such  other  or  further  relief 
as  the  court  may  deem  just  and  equitable,  and  for  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 


FORM   No.  960 — Against  judgment  debtor,  to  set  aside  fraudulent  judgment 
and  sale. 

[Title  of  court  and  cause.] 

[Introductory  part.] 

1-4.   [As  in  form  No.  957.] 

5.  That  prior  to  the  entry  of  the  said  judgment,  but  after  the 
indebtedness  upon  which  the  aforesaid  judgment  was  rendered  had 
accrued,  the  defendant  Y.  Z.  authorized  a  judgment  to  be  entered, 
on  confession,  in  the  court,  against  him,  in  favor  of  the 
defendant  W.  X.,  for  the  sum  of  $  ,  damages  and  costs,  for  a 
pretended  debt  of  that  amount,  for  money  alleged  to  have  been 
previously  lent  and  advanced  by  said  W.  X.  to  the  said  Y.  Z. 

6.  [Here  allege  the  facts  as  to  execution  and  sheriff's  sale  under 
said  judgment.]  *  *  *  That  no  deed  or  conveyance  has  yet  been 
executed  by  said  sheriff,  the  time  for  such  conveyance  not  yet  having 
arrived. 

7.  That  the  said  last-mentioned  judgment  was  fraudulently  con- 
fessed by  the  said  Y.  Z.  to  the  said  W.  X.,  and  for  the  purpose  of 
covering  up  his  said  property  and  defrauding  the  plaintiff  in  the 
collection  of  his  said  debt  and  demand;  that  said  Y.  Z.  was  not 
indebted  to  the  said  W.  X.  in  said  sum  of  $  ,  for  which  said 
judgment  was  so  confessed,  or  in  any  other  sum,  but  said  judgment 
was  confessed  without  any  consideration,  and  the  sale  of  the  said 
property  made  with  the  full  knowledge  and  concurrence  of  the 
defendant  W.  X.,  with  the  intention  and  design  of  cheating  and 
defrauding  this  plaintiff  out  of  his  said  debt  and  demand,  and  of 
transferring  the  ostensible  ownership  and  possession  of  the  property 
of  said  Y.  Z.  liable  to  execution  to  the  defendant  W.  X.,  so  as  to 
prevent  this  plaintiff,  or  any  other  creditor,  from  levying  upon  and 

Jury's  PI.— 101. 


]590  CREDITORS'  SUITS,  ETC.  [Tit.  XIV. 

selling  the  whole  or  any  part  of  said  property,  in  satisfaction  of  his 
or  their  debt  or  debts  and  demands. 

8.  That  the  said  real  estate  can  not  be  sold  for  a  sum  more  than 
about  one-half  of  the  plaintiff's  said  judgment,  and  that  the  defend- 
ant W.  X.  is  a  man  of  no  pecuniary  responsibility,  and  is  possessed 
of  no  property  other  than  that  so  bid  in  by  him  as  aforesaid. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defend- 
ants :  That  the  said  judgment  in  favor  of  the  said  Y.  Z.  against  the 
said  W.  X.,  and  the  proceedings  and  sale  under  it,  including  the 
sheriff's  said  certificate  of  sale,  be  set  aside,  vacated,  and  declared 
null  and  void  [etc.]. 

§404.     ANSWERS. 

FORM   No.  961 — Denying  return  of  execution. 

[Title  of  court  and  cause.] 

Defendant  answers  to  plaintiff's  complaint  [or  petition]  : 

Denies  that  execution  upon  the  said  judgment  was  ever  returned 

unsatisfied  in  whole  or  in  part  before  the  beginning  of  this  action 

[etc.]. 

FORM   No.  962 — Denying  possession  of  property  belonging  to  the  debtor. 

[Title  of  court  and  cause.] 

Defendant  answers  to  plaintiff's  complaint  [or  petition]  : 
Denies  that  he  had  at  the  commencement  of  this  action,  or  at 
any  time  since,  any  property  of  the  defendant  [debtor]  in  his  pos- 
session or  under  his  control,  as  alleged,  or  at  all. 

FORM   No.  963 — Averment  in  defense  that  defendant  has  assets. 

[Title  of  court  and  cause.] 

Defendant  answers  to  plaintiff's  complaint   [or  petition]  : 
Alleges  that  the  defendant    [judgment  debtor]    has,  and  at  the 
commencement  of  this  action  had,  property  in  this  county  subject  to 
execution,  and  sufficient  to  satisfy  said  judgment,  to  wit:     [State 
what  property.] 

FORM   No.  964 — Denial  that  conveyance  was  fraudulent. 

[Title  of  court  and  cause.] 

Defendant  answers  to  plaintiff's  complaint  [or  petition]  : 

[After  denials,  aver:] 


Ch.  CXVII.]  ANSWERS— FORMS.  1591 

That  upon  the  making  of  the  alleged  assignment  [or  mortgage] 
there  was  an  actual  and  continued  change  of  the  possession  of  the 
assigned  [or  mortgaged]  property  from  the  said  [debtor]  to  the 
[transferees],  who,  immediately  after  the  execution  of  the  assign- 
ment [or  mortgage]  took  actual  and  exclusive  possession  of  the  prop- 
erty; and  that  it  has  at  all  times  since  the  assignment  [or  mortgage] 
remained  in  their  exclusive  protection  and  control. 

FORM   No.  965 — Defense  that  deed  was  made  for  a  valuable  consideration.— 
Action  to  set  aside  alleged  fraudulent  conveyance. 

(In  Lynch  v.  Sweetland,  8  Cal.  App.  582;  97  Pac.  413.) 
[Title  of  court  and  cause.] 

[After  introductory  part  and  denials  appropriate  to  this  defense:] 
7.  Defendants  aver  that  upon  the  30th  day  of  December,  1897, 
defendant  William  Sweetland  was  indebted  to  defendant  Emma 
Sweetland  for  moneys  had  and  received  by  the  said  William  Sweet- 
land from  the  said  Emma  Sweetland,  which  said  moneys  were  the 
separate  estate  of  the  said  Emma  Sweetland,  and  which  said  moneys 
so  by  the  said  William  Sweetland  received  from  the  said  Emma 
Sweetland  were  used  by  the  said  William  Sweetland  in  the  original 
purchase  by  the  said  William  Sweetland  of  the  said  premises  in  said 
complaint  described ;  that  said  purchase  was  made  by  the  said  Will- 
iam Sweetland  from  one  Mrs.  Catherine  Dunne,  on  or  about  the  14th 
day  of  February,  1895 ;  that  at  the  time  of  the  said  conveyance  from 
said  William  Sweetland  to  Emma  Sweetland,  there  was  a  large  sum 
of  money  still  due  for  the  purchase  price  thereof,  and  the  said  prem- 
ises were  then  encumbered  to  secure  the  payment  thereof ;  that  since 
the  making,  execution,  and  delivery  of  said  conveyance  by  the  said 
AVilliam  Sweetland  to  said  Emma  Sweetland,  the  said  Emma  Sweet- 
land, with  her  own  separate  personal  funds,  money,  and  estate,  has 
paid  off  said  indebtedness,  and  the  true  consideration  for  the  making, 
execution,  and  delivery  of  said  conveyance  from  the  said  William 
Sweetland  to  the  said  Emma  Sweetland  was  for  moneys  loaned  by 
the  said  Emma  Sweetland  to  the  said  William  Sweetland,  and  the 
assuming  b3r  the  said  Emma  Sweetland  of  the  obligation  and  indebt- 
edness for  the  balance  of  the  purchase  price  for  said  premises,  which 
said  obligation  and  indebtedness  the  said  Emma  Sweetland  assumed 
and  paid,  and  the  consideration  for  said  conveyance  was  both  good, 
valid,  sufficient,  and  legal. 


1592  CREDITORS'  SUITS,  ETC.  [Tit.  XIV. 

8.  Defendants  allege  that  immediately  after  the  making,  execu- 
tion, and  delivery  of  said  deed  of  conveyance,  namely,  on  or  about 
the  30th  day  of  December,  1897,  the  defendant  Emma  Sweetland 
took  immediate,  absolute,  and  exclusive  possession,  management,  and 
control  of  ail  of  the  said  property  mentioned  in  said  conveyance  and 
in  said  complaint  described,  and  she  has  ever  since  had,  and  now  has, 
ibsolute  and  exclusive  management,  possession,  and  control  of  said 
property. 

9.  Defendants  aver  that  said  deed  was  not  made  solely,  or  at  all, 
with  the  intent  to  defraud  this  plaintiff,  or  with  intent  to  defraud 
any  other  person  or  persons  [etc.]. 

Wherefore,  defendants  pray  that  plaintiff  take  nothing  by  his  said 
acvJon,  and  that  they  have  judgment  for  costs  herein  expended. 

E.  D.  Crawford,  and 
B.  A.  Herrington, 

Attorneys  for  defendants. 


§405.      JUDGMENTS   [OR   DECREES]. 

FORM    No.  966 — Confirming    deed    in    action    to    set    aside   the    same    as    an 
alleged  fraudulent  conveyance. 

(In  Lynch  v.  Sweetland,  8  Cal.  App.  582;  97  Pac.  413.) 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  for  trial  on  the  28th  day  of  July, 
1905,  all  parties  being  present  and  represented  by  counsel,  and  evi- 
dence was  introduced  for  the  respective  parties,  and  the  cause  being 
thereafter,  upon  the  25th  day  of  August,  1905,  submitted  for  deci- 
sion, and  the  court  being  fully  advised,  and  having  given  and  made 
its  findings  of  fact  and  conclusions  of  law;  now,  upon  motion  of 
attorneys  for  defendants : 

It  is  ordered,  adjudged,  and  decreed,  and  the  court  does  now  here 
order,  adjudge,  and  decree,  that  the  conveyance  of  the  premises 
mentioned  in  plaintiff's  complaint  herein  was  made  and  executed 
upon  the  30th  day  of  December,  1897,  and  was  delivered  in  the 
month  of  January,  1898,  by  defendant  William  Sweetland  to  defend- 
ant Emma  Sweetland;  that  the  same  was  made  for  a  good  and  valu- 
able consideration,  and  was  not  made  with  intent  to  defraud  the 
plaintiff,  and  was  not  made  with  intent  of  defrauding  any  existing 
or  subsequent  creditor  or  creditors  of  said  William  Sweetland,  and 


Ch.  CXVIL]  JUDGMENTS  [OR  DECREES].— FORMS.  1593 

the  same  was  and  is  in  no  wise  fraudulent  as  to  the  above-named 
plaintiff. 

It  is  further  ordered,  adjudged,  and  decreed,  that  defendants  have 
judgment  for  their  costs  herein,  taxed  at  $ 
Dated  this  23d  day  of  February,  1906. 

M.  H.  Hyland, 
Judge  of  Superior  Court.  , 

FORM   No.  967 — Following    order    sustaining    demurrer    to    complaint    and 
refusal  to  amend. — Action  in  the  nature  of  a  creditor's  bill. 

(In  Phillips  v.  Price,  153  Cal.  146;  94  Pac.  617.) 
The  demurrer  of  the  defendants  to  the  plaintiff's  complaint  herein 
having  been,  on  the  19th  day  of  May,  1904,  sustained  by  order  of 
this  court,  and  plaintiff  herein  having  in  open  court  declined  to 
amend  his  complaint:  It  is  hereby  ordered  and  adjudged,  that 
plaintiff  herein  take  nothing  by  this  action,  and  that  this  action  be 
and  the  same  is  hereby  dismissed,  and  that  defendants  herein  recover 
their  costs,  taxed  at  $3.00.  U.  P.  Unangst, 

Judge  of  Superior  Court. 

Form  of  complaint  in  an  action  to  set  aside  alleged  fraudulent  conveyance:  Blanc 
v.  Paymaster  Min.  Co.,  95  Cal.  524,   527,  30  Pac.   765,  29  Am.  St.  Rep.  149. 

Form  of  complaint  in  an  action  to  set  aside  an  alleged  fraudulent  assignment: 
Martin  v.  Atchison,  2  Idaho  (Hasb.)  624,  2  Idaho  (W.  P.  Co.)  590,  33  Pac.  47. 

Form  of  answer  in  an  action  to  set  aside  a  fraudulent  conveyance:  National  Wall 
Paper  Co.  v.  McPherson,  19  Mont.  355,  48  Pac.   550,  551. 

For  substance  of  answer  in  an  action  for  alleged  conspiracy  to  cheat  and  defraud 
creditors,  in  which  answer,  after  traversing  the  material  allegations  of  the  com- 
plaint, the  defense  was  set  up  that  the  defendants  became  possessed  of  the  property 
in  question  under  a  sale  thereof  as  a  pledge  to  secure  a  promissory  note,  in  the 
manner  required  by  law;  also,  a  defense  based  upon  a  judgment  pleaded  by  way  of 
estoppel,  and  rendered  in  an  action  for  an  accounting  between  the  parties,  see  Lane 
v.  Tanner,  156  Cal.  135,  136,  103  Pac.  846. 

§406.     ANNOTATIONS. — Fraudulent  transfers  and  assignments. — Creditors' 
suits. 

1.  General    creditor. — Right    to    maintain    action. 

2.  Exception   to  rule  as   to  general  creditor. 
3,  4.  Fraudulent  intent. — Rule  as   to  pleading. 

5.  Intent  to  hinder,   delay,   and  defraud. 

6.  Proceeding  by  creditor's  bill  when  other  proceedings  are   inadequate. 

7.  Creditor's   suit   to   reach   assets. 

8.  Assignment   antedating  judgment. 

1.  General     creditor. — Right    to    main-  the     property    of    his     debtor,     received 

tain    action. — A    general    creditor    may,  under  a  fraudulent  assignment  or  trans- 

without  reducing  his  claim  to  judgment,  fer,  as  a  trustee  for  the  benefit  of  cred- 

piweed  in  equity  to  charge  one  holding  itors:     Barrie    v.    United    Railways,    138 


1594 


CREDITORS'  SUITS,  ETC. 


[Tit.  XIV. 


49  Mo. 
Am.   & 


to 


Mo.  App.  557,  119  S.  W.  1020,  1061,  citing 
and  quoting  the  rule  laid  down  by  Mr. 
Justice  Brewer,  then  judge  of  the  United 
States  Circuit  Court,  in  Clapp  v.  Ditt- 
man,  21  Fed.  15,  quoting  Case  v.  Beau- 
regard, 101  U.  S.  688,  25  L.  ed.  1004. 

2.  Exception  to  rule  as  to  general  cred- 
itor.— It  is  the  general  rule  that  a  cred- 
itor must  reduce  his  claim  to  a  judgment 
before  he  can  maintain  an  action  to  set 
aside  a  fraudulent  conveyance.  But  to 
this  rule  there  is  a  well-established  ex- 
ception: Where  the  defendant  is  a  non- 
resident, a  personal  judgment  can  not  be 
obtained  against  him,  and  therefore  such 
action  can  be  maintained  without  the 
creditor  first  having  obtained  a  judg- 
ment: First  National  Bank  v.  Eastman, 
144  Cal.  487,  77  Pac.  1043,  103  Am.  St. 
Rep.  95,  1  Am.  &  Eng.  Ann.  Cas.  626; 
Taylor  v.  Branscombe,  74  Iowa  534,  38 
N.  W.  400;  Pendleton  v.  Perkins, 
565;  and  cases  cited  in  note  to  1 
Eng.  Ann.  Cas.  626,  630. 

3.  Fraudulent  intent.  —  Rule 
pleading. — It  is  generally  necessary  in 
an  action  to  set  aside  a  fraudulent  con- 
veyance that  there  be  an  express  allega- 
tion of  fraudulent  intent,  although  there 
is  a  line  of  authorities  holding  that  an 
express  allegation  of  fraud  is  unneces- 
sary where  the  allegations  of  fact  are 
such  that  only  one  inference  can  be 
drawn  therefrom,  namely,  that  the  par- 
ties were  moved  with  an  actual  fraudu- 
lent intent  in  doing  the  acts  complained 
of:  Byrne  etc.  D.  G.  Co.  v.  Willis-Dunn 
Co.  (S.  Dak.),  121  N.  W.  620,  622,  citing 
and  reviewing  the  cases  and  distinguish- 
ing the  authorities  on  this  point. 

4.  Fraudulent  intent  in  an  action  to 
set  aside  a  fraudulent  conveyance  must 
be  pleaded  either  directly  or  by  the  aver- 
ment of  facts  from  which  such  intent  is 
conclusively  presumed  as  a  matter  of 
law:  Byrne  etc.  D.  G.  Co.  v.  Willis- 
Dunn  Co.  (S.  Dak.),  121  N.  W.  621,  622; 
Kingman  v.  Mowry,  182  111.  256,  55  N.  E. 
330,  74  Am.  St.  Rep.  169.  See  Albertoli 
v.  Branham,  80  Cal.  631,  22  Pac.  404,  13 
Am.  St.  Rep.  200. 

5.  Intent  to  hinder,  delay,  and  defraud. 
— A  general  averment  that  the  intention 


was  to  hinder,  delay,  and  defraud  cred- 
itors is  not  sufficient:  Meeker  v.  Harris, 
19  Cal.  278,  289,  79  Am.  Dec.  215.  See 
King  v.  Davis,  34  Cal.  106;  Lawrence  v. 
Gayetty,  78  Cal.  126,  131,  20  Pac.  382,  12 
Am.  St.  Rep.  29;  People  v.  McKenna,  81 
Cal.  158,  159,  22  Pac.  488;  Spring  Valley 
W.  Works  v.  San  Francisco,  82  Cal.  286, 
321,  22  Pac.  910,  1046,  16  Am.  St.  Rep. 
116,  6  L.  R.  A.  756. 

6.  Proceeding  by  creditor's  bill  when 
other  proceedings  are  inadequate. — Pro- 
ceedings supplementary  to  execution  are 
not  an  adequate  remedy  when  they  can 
not  in  themselves,  without  the  aid  of  an 
independent  action,  result  in  subjecting 
the  property — whether  tangible  or  a  mere 
chose  in  action — to  the  payment  of 
plaintiff's  claim.  Such  condition  exists 
wherever  it  appears  that  the  person  who 
is  charged  with  holding  property  belong- 
ing to  the  judgment  debtor,  or  with  be- 
ing indebted  to  him,  claims  title  to  the 
property  or  denies  the  deed.  In  such 
cases  an  action  is  necessary,  and  the 
plaintiff  may  proceed  by  creditor's  bill 
without  first  pursuing  statutory  proceed- 
ings, which  could  not  give  him  any- 
thing more  than  a  right  to  sue:  Phillips 
v.  Price,  153  Cal.  146,  150,  94  Pac.  617. 

7.  A  creditor's  suit  to  reach  assets 
of  a  street  railway  company,  and 
brought  to  charge  against  such  assets  a 
judgment  which  plaintiff  obtained  against 
the  company,  in  whose  hands  the  assets 
formerly  were,  may  be  maintained 
whether  the  consideration  was  adequate, 
or  whether  no  consideration  whatever 
was  paid,  under  the  facts  as  disclosed: 
Barrie  v.  United  Railroads,  138  Mo.  App. 
557,  119  S.  W.  1020,  1048. 

8.  Assignment  antedating  judgment. — 
If  an  assignment  for  the  benefit  of  cred- 
itors made  by  a  corporation  antedates  a 
judgment  against  the  corporation,  such 
judgment  does  not  become  a  lien  upon 
the  property,  if  the  assignment  was 
valid,  and  the  assignee's  deed  under  such 
assignment  transferring  the  title  is  a 
complete  defense  to  an  action  brought 
by  persons  claiming  under  a  sheriff's 
deed:  Lacy  v.  Gunn,  144  Cal.  511,  514,  78 
Pac.  30. 


Ch.  CXVIII.]         COMPLAINTS  [OR  PETITIONS].— FORMS.  15(J5 


CHAPTER   CXVIII. 

Conversion  and  Trover. 

Page 

5  407.  Complaints  [or  petitions]    1595 

Form  No.  968.  For  conversion      (Common  form.) 1595 

Form  No.  969.  Goods  in  defendant's  possession 1596 

Form  No.  970.  By  assignee  of  claim,  for  conversion  and  dam- 
ages    1596 

Form  No.  971.  By  seller  against  fraudulent  buyer  of  goods...  1596 

Form  No.  972.  Goods  taken  from  possession  of  bailee 1597 

Form  No.  973.  For  conversion  of  a  promissory  note 1597 

Form  No.  974.  For  conversion  of  a  bond 1598 

Form  No.  975.  By  executor  [or  administrator],  for  conversion  1598 
Form  No.  976.  Against  an  attorney,  for  conversion  of  money 

collected    1599 

Form  No.  977.  Against    warehouseman,     for    conversion    and 

damages 1599 

Form  No.  978.  For  malicious  conversion,  and  damages  result- 
ing therefrom    1601 

5  408.  Answers 1602 

Form  No.  979.  Denial  of  conversion    1602 

Form  No.  980.  Denial  of  taking 1602 

Form  No.  981.  Denial  of  ownership  1602 

Form  No.  982.  Denial  of  assignment  of  cause  of  action 1602 

§  409.  Annotations 1603 


§407.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  968 — For  conversion.      (Common   form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  lawfully- 
possessed  of  [give  brief  description  of  goods],  as  of  his  own  property, 
of  the  value  of  $ 

2.  That  on  said  day,  at  ,  the  defendant  took  and  carried 
away  the  said  goods,  and  unlawfully  converted  and  disposed  of  the 
same  to  his  own  use,  to  the  damage  of  the  plaintiff  in  the  sum  of 

$ 

[Concluding  part.] 


1596  CONVERSION  AND  TROVER.  [Tit.  XIV. 

FORM  No.  969 — Goods  in  defendant's  possession. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  plaintiff  was  the  owner  of 
[briefly  describe  property],  of  the  value  of  $  ,  and  was  then 
entitled  to  the  immediate  possession  thereof. 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant, 
then  being  in  possession  of  said  goods,  unlawfully  converted  and  dis- 
posed of  the  same  to  his  own  use,  to  the  damage  of  the  plaintiff  in 
the  sum  of  $ 

[Concluding  part.] 

FORM   No.  970 — By  assignee  of  claim,  for  conversion  and  damages. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  before  and  until  the  time  first  hereinafter  mentioned,  one 
C.  D.  was  lawfully  possessed  of  [or  was  entitled  to  the  immediate 
possession  of  (describe  goods),]  the  property  of  the  said  C.  D.,  of  the 
value  of  $ 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant, 
being  then  in  possession  of  said  goods,  unlawfully  converted  them 
to  his  own  use,  to  the  damage  of  the  said  C.  D.  in  the  sum  of  $ 

3.  That  on  the  day  of  ,  19  ,  the  said  C.  D.  assigned  to 
the  plaintiff  his  claim  against  the  defendant  for  damages  for  said 
conversion. 

[Concluding  part.] 

FORM   No.  971 — By  seller  against  fraudulent  buyer  of  goods. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  defendant 
falsely  and  fraudulently  represented  to  the  plaintiff  that  one  C.  D. 
was  solvent,  and  worth  $             over  all  his  liabilities. 

2.  That  the  plaintiff,  relying  on  said  representations,  was  thereby 
induced  to  sell  to  the  said  C.  D.  [description  of  goods],  of  the  value 

of  $ 

3.  That  the  said  representations  were  false,  and  were  then  known 
by  the  defendant  to  be  so,  and  were  made  by  him  with  intent  to 
deceive  and  defraud  the  plaintiff. 


Ch.  CXVIII.]         COMPLAINTS  [OR  PETITIONS].— FORMS.  1597 

4.  That  the  defendant  having  so  obtained  possession  of  said  goods 
from  the  plaintiff,  unlawfully  converted  and  disposed  of  them  to  his 
own  use,  to  the  damage  of  the  plaintiff  in  the  sum  of  $  . 

[Concluding  part.] 

FORM   No.  972 — Goods  taken  from  possession  of  bailee. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  at  the  time  hereinafter  mentioned  the  plaintiff  was  and 
still  is  the  owner  of  [describing  the  goods],  said  goods  being  then  in 
the  possession  of  C.  D.,  with  whom  the  plaintiff  had  left  the  same  for 
safe-keeping  [or  otherwise,  as  the  case  may  be]. 

2.  That  on  the  day  of  ,  19  ,  the  defendant  wrongfully 
took  said  goods  from  the  possession  of  the  said  C.  D.,  and  still  detains 
the  same  from  the  plaintiff  without  his  consent,  to  his  damage  in  the 
sum  of  $ 

3.  That  thereafter,  and  before  this  action,  to  wit,  on  the  day 
of  ,  19  ,  the  time  which  the  said  C.  D.  was  safely  to  keep  said 
goods  had  expired,  and  thereupon  the  plaintiff  became  entitled  to 
the  immediate  and  exclusive  possession  thereof. 

[Concluding  part.] 

FORM   No.  973 — For  conversion  of  a  promissory  note. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendants,  and  for  cause  of  action  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
executed  his  promissory  note,  of  which  the  following  is  a  copy: 
[Insert  copy]  ;  which  note  was  made  and  delivered  by  the  plaintiff 
to  C.  D.  without  consideration,  and  for  his  accommodation,  and  with 
the  special  purpose  and  agreement  between  the  plaintiff  and  said  C. 
D.  that  [set  out  purpose] . 

2.  That  said  note  was  thereafter  offered  by  said  C.  D.  to  the  Bank 
of  for  discount;  that  said  bank  refused  to  discount  the  same, 
and  returned  it  to  the  said  C.  D.,  whereupon  the  plaintiff  became 
entitled  to  its  possession. 

3.  That  thereafter,  but  before  maturity  of  the  note,  the  defendant 
"W.  X.,  without  the  knowledge  or  consent  of  the  plaintiff  or  of  C.  D., 
unlawfully  took  the  said  note  from  the  possession  of  C.  D.  and  deliv- 
ered it  to  the  defendant  Y.  Z.,  and  that  the  defendants  thereupon 


1598  CONVERSION  AND  TROVER.  [Tit.  XIV. 

converted  and  disposed  of  it  to  their  own  use,  whereby  the  plaintiff 
was  compelled  to  pay  said  note,  to  his  damage  in  the  sum  of  $ 
[Concluding  part.] 

FORM   No.  974 — For  conversion  of  a  bond. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  one  C.  D.  was 
the  owner  of  a  certain  bond,  a  copy  of  which  is  hereto  annexed, 
marked  "Exhibit  A,"  and  made  a  part  of  this  complaint,  and  by  his 
agent,  at  the  request  of  the  defendant,  deposited  it  with  the  defend- 
ant for  the  purpose  of  [set  out  purpose  for  which  deposited] . 

2.  That  after  a  reasonable  time  for  [set  out  purpose],  and  on  the 

day  of  ,  19     ,  at  ,  the  said  C.  D.  demanded  from 

the  defendant  the  said  bond  or  its  value,  but  the  defendant  refused 
either  to  return  it  or  to  pay  its  value  to  the  said  C.  D.,  to  his  damage 
in  the  sum  of  $ 

3.  That  on  the  day  of  ,  19  ,  at  ,  the  said  C.  D. 
duly  assigned  said  bond  to  the  plaintiff,  together  with  all  his  right  of 
action  against  the  defendant  and  all  other  persons  to  recover  its 
value  or  its  possession  or  damages. 

4.  That  the  value  of  said  bond  at  the  time  of  said  demand  was 

$ 

[Concluding  part.] 

FORM   No.  975 — By  executor  [or  administrator],  for  conversion. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  [As  in  paragraph  1,  form  No.  970.] 

2.  [As  in  paragraph  2,  form  No.  970.] 

3.  That  the  said  goods  were  at  the  date  of  the  taking  and  wrong- 
ful detention  thereof  aforesaid  [and  now  are]  of  the  value  of  $ 

4.  That  thereafter,  and  before  the  commencement  of  this  action, 
the  said  C.  D.  died  testate   [or  intestate],  and  on  the  day  of 

19  ,  after  due  proceedings  had,  letters  testamentary  [or  of 
administration]  upon  the  estate  of  said  C.  D.,  deceased,  were,  by  an 
order  duly  given  and  made  by  the  court  of  the  county  of  , 

of  this  state,  ordered  issued  and  granted  to  the  plaintiff  upon  his 
qualifying  as  such  executor   [or  administrator]  ;  that  the  plaintiff 


Ch.  CXVIII.]         COMPLAINTS  [OR  PETITIONS].— FORMS.  1599 

thereafter  and  thereupon  duly  qualified  as  such  executor  [or  admin- 
istrator], and  entered  upon  the  discharge  of  the  duties  of  said  officer, 
and  he  now  is  such  executor  [or  administrator]. 

5.  [Aver  demand,  except  where  taking  is  wrongful,  as  follows: 
"That  on  or  about  the  day  of  ,  19     ,  the  said  C.  D.  (or 

the  plaintiff)  demanded  the  delivery  of  said  goods  from  the  defend- 
ant, but  defendant  then  and  ever  since  has  refused  to  deliver  the 
same."] 

[Concluding  part.] 

FORM   No.  976 — Against  an  attorney,  for  conversion  of  money  collected. 
(In  Fletcher  v.  Cummings,  33  Neb.  793;  51  N.  W.  144.) 

[Title  of  court  and  cause.] 

Plaintiff  says  that  this  case  comes  into  this  court  on  appeal  from 
a  judgment  of  the  county  court  of  this  county;  that  on  the  day 

of  ,  19     ,  defendant  had  in  his  possession  money  collected  by 

him  as  the  attorney  for  this  plaintiff,  the  property  of  the  plaintiff, 
in  the  sum  of  $145;  that  defendant  was  entitled  to  retain  of  the 
amount  the  sum  of  $  for  services  rendered  this  plaintiff,  and  no 

more,  and  plaintiff  was  entitled  to  the  immediate  payment  of  the 
remaining  sum  of  $  ;  that  on  the  day  of  ,  19     ,  the 

defendant  converted  said  sum  of  [stating  the  amount  of  said  sur- 
plus] to  his  own  use,  and  neglected  and  refused  to  pay  the  same  to 
the  plaintiff,  though  requested  so  to  do. 

Since  the  judgment  on  this  case  was  rendered  in  the  county  court 
the  defendant  has  paid  thereon  the  sum  of  $  ,  and  no  more. 

There  is  now  due  from  the  defendant  to  the  plaintiff,  of  said 
money  wrongfully  converted  by  the  defendant  to  his  own  use,  the 
sum  of  $  ,  with  interest  thereon  from  ,  19     . 

Wherefore,  plaintiff  prays  judgment  against  the  defendant  for  said 
sum  of  $  ,  with  interest  as  aforesaid  and  costs. 

A.  B.,  Attorney  for  plaintiff. 

FORM   No.  977 — Against  warehouseman,  for  conversion  and  damages. 

(In  Shedoudy  v.  Spreckels  Bros.  C.  Co.,  9  Cal.  App.  398;  99  Pac.  535.) 

[Title  of  court  and  cause.] 

Comes  now  the  plaintiff  in  the  above-entitled  action,  and  for  cause 
of  action  and  by  way  of  amended  complaint  complains  of  the  defend- 
ant and  alleges: 


1C00  CONVERSION  AND  TROVER.  [Tit.  XIV. 

1.  That  defendant  is,  and  at  all  times  mentioned  in  this  amended 
complaint  has  been,  a  corporation  duly  organized  and  incorporated, 
having  a  place  of  business  in  the  city  of  Los  Angeles,  county  of  Los 
Angeles,  state  of  California. 

2.  That  on  the  24th  day  of  April,  1906,  plaintiff  was  the  owner  of 
a  certain  case  of  goods  of  the  value  of  $1,400,  and  was  then  entitled 
to  immediate  possession  of  the  same. 

3.  That  on  or  about  the  24th  day  of  April,  1906,  defendant,  then 
being  in  possession  of  said  goods,  unlawfully  converted  and  disposed 
of  the  same  to  his  own  use,  to  the  damage  of  the  plaintiff  in  the  sum 
of  $1,400. 

And  for  a  second  and  separate  cause  of  action  plaintiff  further 
complains  and  alleges: 

1.  That  defendant  carries  on,  and  at  all  times  mentioned  in  this 
complaint  has  carried  on,  the  business  of  warehouseman  in  the  city 
of  Los  Angeles,  county  of  Los  Angeles,  state  of  California. 

2.  That  the  plaintiff  was  at  all  times  mentioned  in  this  complaint 
the  owner  and  entitled  to  the  immediate  possession  of  a  certain  case 
of  goods,  of  the  value  of  $1,400. 

3.  That  on  or  about  the  7th  day  of  August,  1905,  the  said  goods 
were  deposited  with  the  defendant  at  the  defendant's  warehouse  in 
the  city  of  Los  Angeles  by  the  Atchison,  Topeka,  and  Santa  Fe 
Railway  Company,  to  be  held  and  stored  by  defendant  on  behalf  of 
the  plaintiff. 

4.  That  on  or  about  the  7th  of  November,  1905,  defendant  repre- 
sented to  plaintiff  that  it  was  then  holding  and  storing  the  goods  on 
behalf  of  the  plaintiff,  and  it  was  thereupon  agreed  between  plaintiff 
and  defendant,  and  defendant  agreed  and  undertook,  that  it  would 
continue  to  store  said  goods  for  and  on  behalf  of  the  plaintiff,  and 
would  deliver  the  said  goods  to  the  plaintiff's  order  at  any  time  upon 
plaintiff's  paying  to  defendant  the  sum  of  $2.50,  being  the  amount  of 
freight  on  said  goods  paid  by  defendant  on  behalf  of  plaintiff  to  said 
railway  company,  and  storage  charges  due  to  defendant  on  said 
goods  up  to  said  7th  of  November,  1905,  together  with  whatever 
further  storage  charges  should  have  become  due  at  the  time  of  deliv- 
ery of  said  goods,  at  the  rate  of  twenty-five  cents  per  month. 

5.  That  nevertheless  on  or  about  the  24th  day  of  April,  1906,  the 
defendant,   without   any   further   communication   whatever   to    the 


€h.  CXVIII.]         COMPLAINTS  [OR  PETITIONS].— FORMS.  1601 

plaintiff,  wrongfully  sold  and  parted  with  the  possession  of  the  said 
goods. 

6.  That  defendant  has  ever  since  refused,  and  still  refuses,  to 
deliver  said  goods  to  plaintiff,  or  to  pay  plaintiff  the  value  of  said 
goods  so  wrongfully  sold  and  disposed  of,  though  plaintiff  has  often 
demanded  of  defendant  so  to  do. 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the  sum 
of  $1,400,  being  the  market  value  of  said  goods  at  the  time  of  their 
sale  and  disposition  by  defendant,  and  for  interest  thereon  from  the 
said  date  to  the  present  time,  and  for  such  further  relief  as  plaintiff 
may  be  entitled  to  on  the  facts  hereinbefore  set  out,  and  that  defend- 
ant be  ordered  to  pay  the  costs  of  this  suit. 

Conkling  &  Bretherton, 

Attorneys  for  plaintiff. 

FORM   No.  978 — For  malicious  conversion,  and  damages  resulting  therefrom. 
(In  Shandy  v.  McDonald,  38  Mont.  393;  100  Pac.  203.) 

[Title  of  court  and  cause.] 

[After  the  usual  averments  of  ownership  and  possession  by  plaint- 
iff, of  the  property  converted, — in  this  case  a  team,  etc., — and  of  the 
value  of  the  property,  fixed  at  $1,600,  the  complaint  proceeds :] 

That  on  July  19,  1905,  the  plaintiff,  being  in  lawful  possession  of 
[said  team],  together  with  another  large  team  and  a  heavy  wagon 
and  harness,  was  on  his  way  to  fulfil  a  teaming  contract  into  which 
he  had  entered  [with  one  ,  and  of  the  date  of  ,  19     ,] 

requiring  the  use  of  all  of  said  property ;  that  defendants,  well  know- 
ing that  plaintiff  was  not  indebted  to  them  in  any  way,  that  they  had 
no  right  or  interest  in  the  property,  or  any  right  to  take  or  detain  it, 
and  also  that  plaintiff  was  required  to  use  it  in  order  to  fulfil  his  said 
contract,  which  would  yield  to  him  a  profit  of  $500  within  sixty  days, 
[wrongfully,]  fraudulently,  and  maliciously  to  obtain  the  use  of  it 
for  themselves,  and  to  deprive  the  plaintiff  of  it  and  put  him  to  great 
inconvenience,  expense,  and  loss  of  time,  [wrongfully,]  maliciously, 
fraudulently,  and  oppressively,  and  against  the  wishes  and  protests 
of  plaintiff,  took  and  carried  it  away,  converting  and  disposing  of  it 
to*  their  own  use,  to  the  damage  of  plaintiff  in  the  sum  of  $3,000. 

[It  is  further  alleged  in  the  complaint  that  plaintiff  spent  thirty 
days  in  the  pursuit  of  his  property,  besides  incurring  an  expense  and 
•expending  $300  in  money,  and  that  the  time  so  spent  was  reasonably 


16Q2  CONVERSION  AND  TROVER.  [Tit.  XIV. 

worth  $500.  It  is  also  alleged  that  at  various  times  between  July  20 
and  August  20,  1905,  plaintiff  demanded  the  return  to  him  of  his  said 
property,  but  that  his  demand  was  in  each  instance  refused,  except 
that  on  August  3  there  was  returned  to  him  a  designated  portion  of 
said  property.] 

[Judgment  prayed  for  in  the  sum  of  $3,800,  and  costs  of  the 
action.] 

§408.     ANSWERS. 

FORM   No.  979 — Denial  of  conversion. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  he  converted  the  goods  mentioned  therein,  or  any 

thereof,  to  his  own  use,  and  denies  further  that  he  ever  at  any  time 

refused  to  deliver  the  same  to  the  plaintiff. 

FORM   No.  980 — Denial  of  taking. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 
Denies  he  took  or  carried  away  said  goods,  or  any  thereof,  at  any 
time,  or  at  all. 
[Etc.] 

FORM   No.  981  — Denial  of  ownership. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  at  the  time  of  the  alleged  conversion,  or  at  any  time 
[since  the  day  of  ,  19     ,]  plaintiff  was  the  owner,  or  that 

he  was  entitled  to  the  immediate  or  any  possession,  of  the  goods, 
wares,  or  merchandise  mentioned  in  the  complaint  [or  petition],  or 
any  thereof.  [Allege  ownership  in  the  defendant  or  in  third  person 
through  whom  defendant  derives  his  right.] 

[Concluding  part.] 

FORM   No.  982 — Denial  of  assignment  of  cause  of  action. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  said  C.  D.  or  E.  F.,  or  either  of  them,  ever  assigned 

to  the  plaintiff  their  right,  title,  or  interest  in  or  to  the   [designate 


Ch.  CXVIII.]  ANNOTATIONS.  1603 

property]  mentioned  in  the  complaint  [or  petition],  or  in  or  to  any 
claim,  demand,  or  cause  of  action  arising  to  said  C.  D.  and  E.  F.,  or 
either  of  them,  for  the  alleged  detention  or  loss  of  said  [designating 
property]. 

[Set  forth  any  other  defense.] 

[Concluding  part.] 

Form  of  petition  in  an  action  for  conversion  of  certain  personal  property:  Con* 
V.  Ivinson,  4  Wyo.  203,  33  Pac.  31,  35  Pac.  933. 

Form  of  petition  in  an  action  by  the  pledgeor  of  a  note  as  collateral  against  the 
pledgee,  for  conversion:  Hallack  L.  &  M.  Co.  v.  Gray,  19  Colo.  149,  34  Pac.  1000, 
1001. 

Form  of  complaint  in  an  action  of  trover  and  conversion  against  an  assignee 
under  a  general  assignment  for  the  benefit  of  creditors,  of  property  covered  by  a 
chattel  mortgage:    Case  T.  M.  Co.  V.  Campbell,  14  Ore.  460,  462,  13  Pac.  324,  325. 

§409.     ANNOTATIONS. — Conversion  and  trover. 

1.  Elements  of  an  action  for  conversion. 

2.  Allegation  of  fact  of  conversion. 

3.  Averment  of   ownership. 

4,  5.  Complaints  deemed  sufficient. 

6,  7.  Fraudulent  conversion. — Remedies  of  party  defrauded. 

8,  9.  Rule  as  to  pleading  fraud. — When  not  applicable. 

10.  Demand. — When  not  necessary. 

11.  Conversion  by  carrier. — Stoppage  in  transitu. 

12.  Trover  at  common  law. 

13,  14.  Rule   as    to   property   severed   from    the   soil. — When   owner   may   maintain 
trover. 

15.  Unlawful  sale  of  note's  collaterals. — Complaint. 
16,  17.  Measure  of  damages  in  trover  and  conversion. 

18.  Plea  of  former  adjudication. 

1.  Elements  of  an  action  for  the  con-  3.  An  averment  of  ownership  of  prop- 
version  of  personal  property  as  ordi-  erty  in  an  action  for  conversion  is  suffi- 
narily  alleged  in  a  complaint  are:  (1)  cient  as  against  a  general  demurrer,  al- 
Ownership  and  right  to  possession  by  though  not  essential  in  this  form,  where 
plaintiff  of  the  property  on  a  day  it  is  necessarily  implied  from  other 
named;  (2)  wrongful  detention  and  con-  averments  in  the  pleading  that  the 
version  to  defendant's  own  use  of  said  plaintiff  is  the  owner:  Lowe  v.  Ozmun, 
property  on  that  date;   (3)   market  value  137  Cal.    257,   261,   70   Pac.   87. 

of    said    property;    (4)    demand    for    the  4.  Complaint      deemed      sufficient. —  A 

return    thereof,    and    refusal   by   defend-  complaint,  in  substance,  alleges  that  the 

ant  to  comply  therewith;  (5)  consequent  plaintiffs   were   the  owners   of  the   note 

damage,    and   non-payment  of   the   same  in  question,  that  it  was  wrongfully  taken 

or  any  part  thereof:  Wendling  L.   Co.  v.  and    converted    by    the    defendant,    and 

Glenwood    L.    Co.,    153    Cal.    411,    412,    95  that      the      reasonable      market      value 

Pac.   1029.  thereof     was      $108.72;      held,      sufficient 

2.  Allegation  of  fact  of  conversion. —  against  a  general  demurrer:  Capps  v. 
An  allegation  that  the  defendants  "con-  Vasey  Bros.,  23  Okla.  554,  101  Pac.  1043, 
verted   and   disposed   of   the   property   to  1045. 

their  own  use"  is  an  allegation  of  these  5.  A    complaint    is    sufficient    if    it,    in 

facts    sufficient,     in    the    absence    of    a  substance,     alleges    that    the    defendant 

special    demurrer,     to    sustain    a    judg-  took   the   plaintiff's   property,   describing 

ment:     Daggett    v.    Gray,    110    Cal.    169,  it,   and  refused  to  return  it  on  demand, 

42   Pac.    568;    Lowe   v.    Ozmun,    137   Cal.  and    alleges    the    statutory    measure    of 

257,  260,   70  Pac.  87.  damages  for  conversion:    Arzaga  v.  Vill- 


1604 


CONVERSION  AND  TROVER. 


[Tit.  XIV. 


alba,  85  Cal.  191.  196,  24  Pac.  656.  See 
Wood  v.  McDonald,  66  Cal.  546,  548,  6 
Pac.  452;  Doyle  v.  Callaghan,  67  Cal.  154, 
1   Pac.  418. 

6.  Fraudulent  conversion. — It  Is  the 
general  rule  in  actions  for  the  conver- 
sion of  personal  property,  where  the 
property  has  been  procured  by  fraud, 
that  it  is  not  necessary  to  allege  the 
fraud,  but  it  is  sufficient  to  declare  gen- 
erally that  the  property  was  wrongfully 
converted:  Salisbury  v.  Barton,  63  Kan. 
552,  66  Pac.  618;  Pekin  Plow  Co.  v.  Wil- 
son, 66  Neb.  115,  92  N.  W.  176;  Hunter  v. 
Hudson  R.  Co.,  20  Barb.  (N.  Y.)  493; 
Bliss  v.  Cottle.  32  Barb.  (N.  Y.)  322; 
Benesch  v.  Waggner,  12  Colo.  534,  21 
Pac.  706,  13  Am.  St.  Rep.  254;  Wend- 
ling  L.  Co.  v.  Glenwood  L.  Co.,  153  Cal. 
411,   415,   95   Pac.   1029. 

7.  Remedies  of  the  party  defrauded 
are  either  trover,  or  replevin  in  the 
detinet,  or  trespass,  or  replevin  in  the 
cepit,  at  his  election:  Amer.  v.  High- 
tower,  70  Cal.  440,  11  Pac.  697,  (replev- 
in); Wendling  L.  Co.  v.  Glenwood  L. 
Co.,  153  Cal.  411,  414,  95  Pac.  1029, 
(fraudulent  conversion). 

8.  Rule  as  to  pleading  fraud. — When 
not  applicable.— The  rule  that  where 
fraud  is  relied  on  by  a  party  he  must 
allege  it  is  not  applicable  in  an  action 
brought  upon  the  theory  that  the  ven- 
dor is  the  owner  and  entitled  to  the 
possession  of  the  property,  and  that 
the  defendant  unlawfully  withholds  pos- 
session thereof,  or  has  converted  the 
same  to  his  own  use.  Under  the  gen- 
eral allegations  of  ownership  and  right 
of  possession,  and  unlawfully  withhold- 
ing or  conversion,  evidence  is  admis- 
sible in  proof  of  any  facts  sustaining 
such  claim:  Wendling  L.  Co.  v.  Glen- 
wood L.  Co.,  153  Cal.  411,  414,  95  Pac. 
1029,  (fraudulent  conversion);  Butler  V. 
Collins,  12  Cal.  457;  Amer  v.  High  tower, 
70  Cal.  440,  11  Pac.  697,   (replevin). 

9.  This  modification  of  the  rule  in  ac- 
tions involving  fraud  rests  upon  the 
principle  that,  as  between  the  vendor 
and  fraudulent  vendee,  or  a  person  tak- 
ing from  such  fraudulent  vendee  with 
notice  of  the  fraud  or  without  consid- 
eration, the  sale  may,  at  the  election  of 
the  vendor  promptly  made,  be  treated 
as  an  absolute  nullity:  Wendling  L.  Co. 
v.  Glenwood  L.  Co.,  153  Cal.  411,  417, 
95  Pac.  1029,  (on  rehearing). 

10.  No  demand  Is  necessary  before 
bringing    an   action    of    trover    for   goods 


described  in  a  bill  of  lading:     Dodge  v. 
Meyer,    61   Cal.   405,   421. 

11.  Conversion  by  carrier. — Stoppage 
In  transitu. — Upon  demand  by  a  vendor, 
while  the  right  of  stoppage  in  transitu 
continues,  a  carrier  will  become  liable 
for  conversion  of  goods  if  he  declines 
to  redeliver  them  to  the  vendor,  or  de- 
livers them  to  the  vendee:  Markwald 
v.  Creditors,  7  Cal.  213;  Blackman  v. 
Pierce,  23  Cal.  508;  Jones  v.  Earl,  37 
Cal.  630,  632,  99  Am.  Dec.  388;  Memphis 
etc.  R.  Co.  v.  Freed,  38  Ark.  614;  O'Neil 
v.   Garrett,   6  Iowa  480. 

12.  Trover  at  common  law. — While  the 
code  abolishes  the  distinction  between 
different  forms  of  action,  a  complaint 
for  conversion  of  property  under  the 
code  must  now  contain  all  the  material 
allegations  which  were  necessary  in  an 
action  in  trover  at  common  law:  Sigel- 
Campion  etc.  Co.,  v.  Holly,  44  Colo.  580, 
101   Pac.   68,   70. 

13.  Rule  as  to  property  severed  from 
the  soil. — It  is  recognized  as  a  general 
rule  that  the  title  to  property  which 
has  become  personalty  by  reason  of  its 
severance  from  the  soil  or  freehold,  as  in 
case  of  timber  felled,  ore  mined,  stone 
quarried,  etc.,  depends  upon  the  owner- 
ship of  the  real  estate  from  which  it 
was  severed.  The  owner  of  the  real 
estate,  if  out  of  possession,  can  not 
maintain  trover  for  such  property  where 
the  severance  was  made  by  a  person 
holding  adversely  to  such  owner  and  in 
good  faith  under  claim  and  color  of 
title,  since  such  an  action,  if  permitted, 
would  result  in  a  determination  of  the 
title  to  real  estate  between  conflicting 
claimants  in  a  transitory  action.  The 
remedy  of  the  true  owner  in  such  a  case 
is  by  ejectment  to  recover  possession 
and  trespass  for  mesne  profits:  Pacific 
Live  Stock  Co.  v.  Isaacs,  52  Ore.  54;  96 
Pac.  460,  462,  citing  and  construing  the 
rule,  as  stated  above,  in  28  Am.  &  Eng. 
Ency.    (2d  ed.)   670. 

14.  When  true  owner  may  maintain 
trover. — After  recovery  of  possession  in 
ejectment,  the  true  owner  may  maintain 
trover  for  property  severed  from  the 
freehold  by  the  disseizor  while  holding 
adversely:  Pacific  Live  Stock  Co.  v. 
Isaacs,  52  Ore.  54,  96  Pac.  460,  462,  quot- 
ing the  rule  as  stated  in  28  Am.  &  Eng. 
Ency.   (2d  ed.)   671. 

15.  Unlawful  sale  of  note's  collaterals. 
— Complaint. — After  alleging  the  mak- 
ing and  delivery  of  the  note  to  deferid- 


Ch.  CXVIIL] 


ANNOTATIONS. 


1GU5 


ant   for   a   certain   amount,    payable   one 
day  after  date,  with  interest  at  the  rate 
of  one   per   cent  per   month    from   date 
until  paid,  said  note  reciting  the  deposit 
with  defendant  as  collateral  security  of 
500   shares    of   stock    in    a    mining    com- 
pany   and    certain    shares    of    stock    in 
other    companies,    and    reciting    a    pro- 
vision     whereby      the      defendant      was 
authorized    to    sell,     without    notice,    at 
public    or    private    sale,    in    case    of    the 
non-payment  of  the   note,   and   that   the 
agreement     by     which     defendant     was 
authorized   to  sell  should  extend   to   any 
additional     collaterals    which    might    be 
deposited   to  secure  the  payment  of  the 
note,    the    following    averment    has   been 
held  sufficient  to  disclose  the  agreement 
relied   upon,   and   the  ground  of  mistake 
in   that  the  agreement  set   forth   in   the 
written    instrument   did   not    conform    to 
the  one  actually  made  between  the  par- 
ties,   to    wit:      "That   plaintiff    deposited 
with   the   defendant  the  shares  of  stock 
mentioned   in   the  note,   and  that  it  was 
not  the  intention  of  the  parties  that  the 
portion  of  the  printed  form  of  the  note 
providing  for  the  sale  of  the  collaterals 
without  notice  should  remain  as  a  por- 
tion of  the  contract,  but  that  an  erasure 
of  that  portion  should  have  been  made, 
and  that  it  was  not  done;   that  plaintiff 
never    authorized    defendant    to    sell    the 
collateral,  or  any  part  of  it,  without  de- 
mand of  payment  of  the  note  and  a  rea- 
sonable time  and  opportunity  to  redeem 
the  collateral;   that  he  never  authorized 
a  private  sale  of  the   collateral   without 
notice   to   him  of   the  time  and   place  of 
the  sale;  that  after  the  maturity  of  the 
note    the    defendant    requested    plaintiff 
to  deposit  with  it  an  unrecorded  United 
States  patent  to  160  acres  of  land,  situ- 
ate in  Pueblo  County,  Colorado,  as  addi- 
tional security,   this  patent  having  been 
issued   to   and   standing   in   the   name   of 
the    plaintiff;    that    in    consideration    of 
such   deposit   the  defendant  agreed   that 
the    time    for   the    payment   of   the    note 
would   be   extended   indefinitely;    that  in 
consideration  of  this  agreement  plaintiff 
did   deposit   the   patent   with   defendant; 
that  defendant  accepted  the  paper  in  ac- 
cordance  with    the    agreement,    and   still 
has  possession  of  it;   that  the  defendant 
at  no  time  made  any  demand  upon   the 
plaintiff    for    the    payment    of    the    note, 
and  gave  the  plaintiff  no  opportun'ty  to 
Jury's  PL— 102. 


redeem  the  securities;  that  upon  the 
10th  day  of  January,  1899,  without  notice 
to  the  plaintiff,  defendant  sold  and  con- 
verted to  its  own  use  the  BOO  shares  of 
stock  of  the  Isabella  Gold  Mining  Com- 
pany; that  this  sale  was  made  without 
advertisement  or  notice;  that  plaintiff 
was  at  all  times  able  and  willing  to  pay 
the  note  upon  the  return  of  the  securi- 
ties; that  upon  the  15th  day  of  Feb- 
ruary, 1899,  he  made  a  tender  to  defend- 
ant of  the  amount  due  on  the  note, 
including  interest,  in  gold  coin  of  the 
United  States,  and  demanded  a  return 
of  the  securities  and  title  paper;  that 
defendant  refused  to  accept  the  tender, 
and  refused  to  return  the  securities,  or 
any  of  them;  that  the  securities  are 
worth  $2,500,  and  plaintiff  demands 
judgment  for  the  return  of  the  securi- 
ties and  for  $2,500  damages":  Drake  v. 
Pueblo  National  Bank,  44  Colo.  49,  96 
Pac.    999,    1000. 

16.  Measure  of  damages  in  trover. — 
In  trover,  the  measure  of  damages  is 
the  fair  market  value  of  the  property 
converted  at  the  time  of  the  conversion, 
and,  in  Colorado,  an  additional  amount 
equal  to  the  legal  rate  of  interest  upon 
such  value  from  the  time  of  conversion 
to  the  time  of  trial:  Omaha  etc.  R.  Co. 
v.  Tabor,  13  Colo.  41,  59,  21  Pac.  925,  5 
L.  R.  A.  236,  16  Am.  St.  Rep.  185;  Sigel- 
Campion  etc.  Co.,  44  Colo.  5S0,  101  Pac. 
68,    70. 

17.  Damages  for  conversion. — The  cost 
of  property  is  not  the  proper  basis  of 
estimating  damages.  The  value  at  the 
time  and  place  of  conversion  must  be 
taken:  Greenebaum  v.  Taylor,  102  Cal. 
624,  627,  36  Pac.  957;  Yukon  River  S.  B. 
Co.  v.  Gratto,  136  Cal.  538,  541,  69  Pac. 
252.  See  Hamer  v.  Hathaway,  33  CaL 
117. 

18.  A  plea  of  former  adjudication  in 
an  action  involving  ownership — such  as 
trover  or  detinue — must  aver  that  the 
question  of  title  was  actually  decided  in 
the  former  case,  or  was  so  involved  that 
the  judgment  could  not  have  been  ren- 
dered without  its  determination.  The 
only  effect  of  such  former  judgment  is 
to  settle  the  rights  of  the  parties  up  to 
that  time;  it  cannot  prevent  the  plaint- 
iff from  recovering  on  a  title  since  ac- 
quired: Pacific  Live  Stock  Co.  v.  Isaacs, 
52  Ore.  54,  96  Pac.  460,  463,  quotir.g  tha 
rule  as  stated  in  9  Ency.  PI.  &  Pr.   624. 


1606  TRADE-MARKS,  ETC.  [Tit.  XIV. 


CHAPTER   CXIX, 

Trade-Marks  and  Trade-Signs. 

Page 

§  410.  Code  provisions    1606 

§  411.  Complaint  [or  petition] 1612 

Form  No.  983.  To  restrain  infringement  of  trade-mark  and  for 

damages 1612 

§  412.  Annotations 1613 

§410.     CODE  PROVISIONS. 

Right  to  trade-marks  and  trade-signs. 

California,  §  991.  One  who  produces  or  deals  in  a  particular 
thing,  or  conducts  a  particular  business,  may  appropriate  to  his 
exclusive  use,  as  a  trade-mark,  any  form,  symbol,  or  name  which  has 
not  been  so  appropriated  by  another,  to  designate  the  origin  or 
ownership  thereof;  but  he  cannot  exclusively  appropriate  any  desig- 
nation, or  part  of  a  designation,  which  relates  only  to  the  name, 
quality,  or  the  description  of  the  thing  or  business,  or  the  place 
where  the  thing  is  produced,  or  the  business  is  carried  on.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §§7960-7962.  b  Colorado,  Rev. 
Stats.  1908,  §  6838.  c  Hawaii,  Rev.  Laws  1905,  §§  2671-2674.  a  Missouri,  Ann. 
Stats.  1906,  §  10365.  Montana,  Rev.  Codes  1907,  §  4565.  e  Nebraska,  Comp. 
Stats.  Ann.  1909,  §  4175a;  Ann.  Stats.  (Cobbey),  §6949.  *  Nevada,  Comp. 
Laws  Ann.  1900  (Cutting),  §5040.  s  New  Mexico,  Laws  1905,  p.  63,  ch.  24. 
§  1.  North  Dakota,  Rev.  Codes  1905,  §  4921.  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §4175;  Comp.  Laws  1909  (Snyder),  §7361.  h  Oregon,  Ann. 
Codes  and  Stats.  1902  (Bel.  &  Cot),  §4609.  South  Dakota,  Rev.  Codes  1903, 
C.  C.  §  892.  i  Texas,  Civ.  Stats.  1897  (Sayles),  Arts.  318a,  318d.  i  Utah,  Comp. 
Laws  1907,  §2720.  *  Washington,  Code  1910  (Rem.  &  Bal.),  §9492.  i  Wis- 
consin, Stats.  1898  (San.  &  Ber.  Ann.),  §  1747a.  m  Wyoming,  Rev.  Stats. 
1899,  §  2526. 

ai  Arkansas,     §  7960.    Any     person     or  or  located  in  any  foreign  country,  which, 

firm  in  this  state,  or  any  of  the  United  by  treaty  or  convention,  affords  similar 

States    or    territories    thereof,    and    any  privileges     to     citizens     of     the     United 

corporation  created  by  the  authority  of  States,  and  who  may  be  entitled  to  the 

this  state,  or  the  United  States,  or  any  exclusive  use  of  any  lawful  trade-mark 

of  the  states  or  territories  thereof,  and  or  device,  or  who  may  intend  to  adopt 

any  person,  firm  or  corporation  resident,  and   use   any   trade-mark  or  device   for 


Ch.  CXIX.] 


CODE    PROVISIONS. 


1607 


exclusive  use  in  this  state,  may  obtain 
protection  for  such  lawful  trade-mark 
or  device  by  complying  with  the  fol- 
lowing requisites   and   requirements. 

First.  By  making  out  and  filing  In 
the  office  of  the  secretary  of  state  of 
this  state,  to  be  there  registered  or  re- 
corded, a  statement  specifying  the 
names  of  the  parties  and  their  resi- 
dence and  place  of  business  who  desire 
the  protection  of  the  trade-mark,  the 
class  of  merchandise,  and  particular  de- 
scription of  goods  comprised  in  such 
class,  by  which  or  to  which  the  trade- 
mark has  been  or  is  intended  to  be 
appropriated;  a  description  of  the  trade- 
mark itself  or  device,  or  combination  of 
words,  letters  or  figures  or  characters 
used  or  intended  to  be  used  as  such, 
and  the  mode  in  which  it  has  been  or 
is  intended  to  be  applied  and  used,  and 
the  length  of  time,  if  any,  during  which 
the  trade- mark  has  been  in  use. 

Second.  By  making  payment  to  the 
secretary  of  state,  for  the  use  of  the 
state,  of  a  fee  of  not  less  than  twenty- 
five  nor  more  than  one  hundred  dol- 
lars, to  be  determined  by  the  secretary 
according  to  a  schedule  of  fees  ar- 
ranged with  reference  to  the  number  of 
words,  figures,  characters,  etc.,  con- 
tained in  such  statement,  which  sched- 
ule it  is  made  the  duty  of  the  secretary 
to  make  and  keep  posted  up  in  his 
office. 

a2  Arkansas,  §  7961.  The  certificate 
prescribed  in  the  preceding  section 
must,  in  order  to  create  any  right  what- 
ever in  favor  of  the  party  filing  it,  be 
accompanied  by  a  written  declaration, 
verified  by  the  person  or  by  some  mem- 
ber of  the  firm  or  officer  of  the  corpo- 
ration by  whom  it  is  filed,  to  the  effect 
that  the  party  claiming  the  protection 
for  the  trade-mark  has  a  right  to  the 
use  of  the  same,  and  that  no  other  per- 
son, firm  or  corporation  has  the  right 
to  such  use,  either  in  the  identical  form 
or  in  any  such  near  resemblance  there- 
to as  might  be  calculated  to  deceive, 
and  that  the  facsimiles  presented  for 
record  are  true  copies  of  the  trade-mark 
sought  to  be  protected. 

a3  Arkansas,  §  7962.  The  secretary  shall 
not  receive  and  record  any  proposed 
trade-mark  which  is  not  and  can  not 
become  a  lawful  trade-mark,  or  which 
is  merely  the  name  of  a  person,  firm  or 
corporation,  unaccompanied  by  a  mark 
sufficient  to  distinguish  it  from  the  same 


name  when  used  by  other  persons,  or 
which  is  identical  with  a  trade-mark  ap- 
propriated to  the  same  class  of  mer- 
chandise and  belonging  to  a  different 
owner,  and  already  registered  or  re- 
ceived for  registration,  or  which  so 
nearly  resembles  such  last-mentioned 
trade-mark  as  to  be  likely  to  deceive 
the  public.  But  this  section  shall  not 
prevent  the  registry  of  any  lawful  trade- 
mark rightfully  in  use  on  the  first  day 
of    May,    1883. 

b  Colorado,  §  6838.  Any  person,  corpo- 
ration, firm  or  association  of  persons,  or- 
ganized for  the  promotion  of  the  com- 
mon welfare  of  its  members,  and  the 
members  of  its  order  or  society,  in  the 
manufacture  or  sale  of  any  goods,  wares 
or  merchandise  may  adopt  and  use  a  la- 
bel or  trade-mark  to  indicate  either  the 
origin  or  ownership,  or  both  the  origin 
and  ownership,  of  the  goods,  wares  or 
merchandise,  manufactured,  sold  or  of- 
fered for  sale  within  this  state,  by  any 
such  person,  corporation,  firm  or  the 
members  of  such  association,  order  or 
society  having  a  common  interest  in 
promoting  the  manufacture  or  sale  of 
such  goods,  wares  or  merchandise;  and 
any  such  person,  corporation  or  firm,  and 
each  and  every  member  of  such  associa- 
tion, order  or  society,  shall  have  and  be 
protected  in  the  exclusive  use  of  such 
label  or  trade-mark,  adopted  and  used 
for  the  purpose  aforesaid,  on  compliance 
with   the  following  requirements: 

First — Such  person,  corporation,  firm 
or  association,  shall  cause  to  be  filed  in 
the  office  of  the  secretary  of  state,  a 
facsimile  of  such  label  or  trade-mark, 
accompanied  with  a  written  statement, 
under  oath,  by  such  person,  or  the  prin- 
cipal officer  of  such  corporation  or  asso- 
ciation, or  some  member  of  such  firm,  to 
the  effect  that  the  person,  corporation, 
firm  or  association,  in  behalf  of  its  mem- 
bers and  the  members  of  its  order  or  so- 
ciety, claiming  protection  in  the  use  of 
such  label  or  trade-mark,  is  entitled  to 
the  exclusive  use  of  the  same;  and,  in 
case  of  an  association  organized  for  pro- 
moting the  welfare  of  its  members,  and! 
the  members  of  its  order  or  society,  as 
aforesaid,  then  a  general  description 
shall  be  given  of  the  class  of  persons  for 
whom  the  protection  is  sought,  sufficient 
to  identify  them,  which  may  include  all 
members  of  the  order  or  society,  of 
which  the  particular  association  claiming 
the  protection,  is  a  branch;  and  it  must 


1608 


TRADE-MARKS,  ETC. 


[Tit.  XIV. 


also  appear  In  such  statement,  that  no 
other  person,  corporation,  firm  or  asso- 
ciation, has  the  right  to  use  such  label 
or  trade -mark,  either  in  the  identical 
form  presented,  or  in  any  such  near  re- 
semblance thereto  as  would  be  likely  to 
deceive  the  public;  and  also  the  principal 
place  of  business  of  such  person,  corpo- 
ration or  firm,  and  the  name  and  loca- 
tion and  purpose  of  such  organized  asso- 
ciation, and  also  the  class  of  goods, 
wares  or  merchandise  to  which  such  la- 
bel or  trade-mark  is  to  be  applied;  pro- 
vided, the  secretary  of  state  shall  not 
file  for  record  in  his  office  any  label  or 
trade-mark,  which  is  identical  with  any 
previously  filed  in  his  office,  nor  of  such 
near  resemblance  to  any  such  previously 
filed  in  his  office,  as  to  be  likely  to  de- 
ceive the  public;  and,  provided,  also, 
that  no  exclusive  rights  shall  be  ac- 
quired under  this  act,  to  the  use  of  the 
proper  name  of  any  article,  or  matter  of 
mere  description  of  the  quality,  value  or 
condition  of  the  article  manufactured  or 
sold;  nor  to  the  real  name  of  the  manu- 
facturer of  the  article,  as  against  an- 
other person  of  the  same  name,  nor  to 
the  geographical  name  of  the  locality 
where  the  same  is  manufactured,  as 
against  another  manufacturer  in  the 
same  locality. 

Second — The  payment  to  the  secretary 
of  state  of  a  fee  of  $5.00  for  filing  and 
entering  a  description  of  the  same  upon 
the  books  of  his  office. 

ci  Hawaii,  §  2671.  Any  person  or  firm,  or 
any  corporation  desiring  to  secure  the 
exclusive  use  of  any  print,  label  or  trade- 
mark intended  to  be  attached  or  applied 
to  any  goods  or  manufactured  articles, 
or  to  bottles,  boxes  or  packages  contain- 
ing such  goods  or  manufactured  articles 
to  indicate  the  name  of  the  manufac- 
turer, the  contents  of  the  packages,  the 
quality  of  the  goods  or  directions  for  use, 
may  obtain  a  certificate  of  the  registra- 
tion of  such  print,  label  or  trade- mark 
in  the  manner  hereinafter  provided. 

c2  Hawaii,  §  2672.  Before  any  one  shall 
receive  a  certificate  of  the  registration 
of  a  print,  label  or  trade-mark,  he  shall 
file  in  the  office  of  the  treasurer  an  ap- 
plication for  the  registration  of  such 
print,  label  or  trade-mark,  with  a  decla- 
ration verified  by  the  oath  of  the  appli- 
cant; or,  if  the  application  be  made  by  a 
firm  or  corporation,  by  the  oath  of  a 
member  of  such  firm,  or  an  officer  of 
■uch  corporation,  that  he  is  or  they  are, 


the  sole  and  original  proprietor  or  pro- 
prietors, or  the  assign  or  assigns  of  such 
proprietor  or  proprietors  of  the  goods  or 
manufactured  articles  for  which  such 
print,  label  or  trade-mark  is  to  be  used, 
and  describing  such  goods  and  manufac- 
tured articles,  and  the  manner  in  which 
such  print,  label  or  trade-mark  is  to  be 
used.  Said  application  shall  be  accom- 
panied by  two  exact  copies  of  such  print, 
label  or  trade -mark. 

c3  Hawaii,  §  2673.  Upon  filing  such  ap- 
plication, the  applicant  or  applicants 
shall  pay  to  the  treasurer  a  fee  of  rive 
dollars. 

c4  Hawaii,  §  2674.  Upon  receiving  such 
application  so  accompanied,  and  the  pay- 
ment of  such  fee,  the  treasurer  shall 
cause  the  said  print,  label  or  trade-mark 
to  be  recorded  in  a  book  to  be  kept  for 
that  purpose,  and  shall  issue  to  the  ap- 
plicant or  applicants  a  certificate  of  reg- 
istration under  the  seal  of  the  treasury; 
and  such  certificate  of  registration  shall 
secure  to  the  applicant  or  applicants  the 
exclusive  use  of  the  said  print,  label  or 
trade-mark  throughout  the  territory  of 
Hawaii  for  the  term  of  twenty  years 
from  the  date  thereof. 

d  Missouri,  §  10365.  If  any  mechanic, 
manufacturer,  association  or  union  of 
workingmen,  or  other  person,  shall  wish 
to  adopt  any  particular  name,  term,  de- 
sign or  device  as  his  or  their  trade- 
mark, to  designate,  make  known  or  dis- 
tinguish any  article  of  goods,  wares  or 
merchandise  by  him  or  them  manufac- 
tured or  prepared,  he  or  they  may  write 
out  a  description  of  such  name,  term, 
design  or  device,  describing  the  same 
accurately,  and  sign  and  acknowledge 
the  same  before  some  officer  competent 
to  take  the  acknowledgment  of  deeds, 
and  file  the  same,  together  with  a  fac- 
simile of  the  name,  term,  design  or  de- 
vice for  registration  in  the  office  of  the 
secretary  of  state,  by  leaving  two  cop- 
ies, counterparts  (of)  [or]  facsimiles 
thereof,  with  the  secretary  of  state; 
said  secretary  shall  deliver  to  such 
mechanic,  manufacturer,  association  or 
union  of  workingmen  or  other  person  so 
filing  the  same,  a  duly  attested  certifi- 
cate of  the  filing  of  the  same,  for  which 
he  shall  receive  a  fee  of  one  dollar; 
such  certificate  shall,  in  all  suits  and 
prosecutions  under  this  chapter,  be  suffi- 
cient proof  of  the  adoption  of  such  label, 
trade-mark  or  form  of  advertisement, 
and  of  the  right  of  such  mechanic,  man' 


Ch.  CXIX.] 


CODE  PROVISIONS. 


1609 


ufacturer,  association  or  union  of  work- 
ingmen  or  other  person  to  adopt  the 
same.  No  label,  trade-mark  or  form  of 
advertisement  shall  be  registered  that 
In  any  way  resembles,  or  would  prob- 
ably be  mistaken  for  a  label  or  trade- 
mark already  registered. 

e  Nebraska,  §  4175a.  Every  person  or 
association  or  union  of  workingmen  or 
others  that  has  adopted  or  shall  adopt 
for  their  protection  any  label,  trade-mark 
or  form  of  advertisement,  may  file  the 
same  for  record  in  the  office  of  the  sec- 
retary of  state  by  leaving  two  copies, 
counterparts  or  facsimiles  thereof  with 
the  secretary  of  state.  Said  secretary 
shall  thereupon  deliver  to  such  person, 
association  or  union  so  filing  the  same 
a  duly  attested  certificate  of  the  record 
of  the  same,  for  which  he  shall  receive 
a  fee  of  two  ($2.00)  dollars.  Such  cer- 
tificate of  record  shall  in  all  actions 
and  prosecutions,  under  the  following 
three  sections  be  sufficient  proof  of  the 
adoption  of  such  label,  trade-mark  or 
form  of  advertisement,  and  the  right 
of  said  person,  association  or  union  to 
adopt  the  same. 

f  Nevada,  §  5040.  When  a  person  who 
has  complied  with  the  provisions  of  sec- 
tion two  of  this  act,  uses  any  peculiar 
name,  letters,  marks,  device,  figures,  or 
other  trade-mark  or  name,  cut,  stamped, 
cast  or  engraved  upon,  or  in  any  man- 
ner attached  to  or  connected  with,  any 
article,  or  with  the  covering  or  wrap- 
ping thereof,  manufactured  or  sold  by 
him,  to  designate  it  as  an  article  of  a 
peculiar  kind,  character,  or  quality,  or 
as  an  article  manufactured  or  sold  by 
him,  or  if  such  trade-mark  or  name  be 
so  connected  with  any  bottle,  box,  cask, 
or  other  thing  used  for  holding  such 
article,  it  shall  be  unlawful  for  any 
other  person,  without  his  consent,  to  use 
said  trade-mark  or  name,  or  any  similar 
trade-mark  or  name,  for  the  purpose  of 
representing  any  article  to  have  been 
manufactured  or  sold  by  the  person 
rightfully  using  such  trade-mark  or 
name,  or  to  be  of  the  same  kind,  char- 
acter, or  quality  as  that  manufactured 
or  sold  by  the  person  rightfully  using 
such  trade-mark  or  name. 

g  New  Mexico,  Laws  1905,  p.  63,  ch. 
24,  §  1.  Any  person  or  persons,  firm, 
corporation  or  association  who  manu- 
facture or  deal  in  articles  of  a  com- 
mercial nature  and  wish  to  retain  the 
exclusive   right    to   the   use   of   a   trade- 


name, trade-mark  or  label  shall  make 
a  description  of  the  same  in  writing, 
accompanied  by  a  facsimile  of  such 
trade-name,  trade-mark,  or  label,  which 
description  and  application  must  set 
forth  the  class  or  classes  of  merchan- 
dise to  be  covered  by  such  trade-name, 
trade-mark  or  label,  together  with  a 
statement  that  the  applicant  claims  by 
priority  of  adoption  and  employment  of 
the  same,  exclusive  right  to  the  use 
thereof.  Such  instrument  shall  be 
signed  by  at  least  one  of  the  persons  or 
by  the  officials  of  the  company  making 
application  for  registration,  the  whole 
duly  acknowledged,  and  filed  in  the  office 
of  the  secretary  of  the  territory.  For 
the  filing  of  each  application  and  issu- 
ing certificate  thereof,  the  secretary 
shall  collect  a  fee  of  $5.00.  The  secre- 
tary shall  keep  a  record  of  each  trade- 
name, trade-mark,  or  label,  and  it  shall 
be  unlawful  for  any  other  person,  firm, 
corporation  or  association  to  adopt  a 
trade-name,  trade-mark  or  label  identi- 
cal with  or  similar  to  one  previously 
registered.  A  copy  of  such  description 
of  any  trade-name,  trade-mark  or  label, 
certified  under  the  great  seal  of  the 
territory  of  New  Mexico,  shall  be  prima 
facie  evidence  of  the  facts  therein 
stated.      (Enacted  March   2,    1905.) 

h  Oregon,  §  4609.  Any  person,  partner- 
ship, firm,  or  private  corporation  desir- 
ing to  secure  within  this  state  the  ex- 
clusive use  of  any  name,  mark,  brand, 
designation,  or  description  for  any  article 
of  manufacture  or  trade,  or  for  any 
mill,  hotel,  factory,  machine-shop,  or 
other  place  of  business,  shall  deliver  or 
cause  to  be  delivered  to  the  secretary  of 
state  a  particular  description  or  a  fac- 
simile of  such  mark,  brand,  name,  desig- 
nation, or  description  as  he  may  desire 
to  use. 

li  Texas,  Art.  318a.  All  manufacturers 
or  dealers  in  carbonated  goods,  mineral 
waters,  soda  water,  wine,  cider,  or  other 
beverage,  or  manufacturers  of  medicine 
or  other  compound  requiring  the  use  of 
kegs,  casks,  barrels,  boxes,  syphons,  bot- 
tles, or  any  other  vessels  for  containers, 
upon  which  the  names,  brands,  marks, 
or  trade-marks,  or  other  designation  of 
ownership  or  proprietorship  is  stamped, 
engraved,  etched,  blown  in,  impressed, 
or  otherwise  produced  upon  such  boxes, 
syphons,  bottles,  or  any  other  vessels 
for  containers,  may  file  in  the  office  of 
the  county  clerk  of  the  county  in  which 


1610 


TRADE-MARKS,  ETC. 


[Tit.  XIV. 


the  principal  place  or  office  of  business 
is  situated,  a  facsimile  or  description 
of  the  name  or  names,  marks  or  de- 
vices, so  used  by  such  manufacturer  or 
dealer  in  such  wares  herein  enumerated, 
and  cause  such  description  to  be  pub- 
lished in  a  public  newspaper  published 
in  such  county  for  three  successive 
weeks;  and  the  act  of  so  filing  and  caus- 
ing to  be  recorded  by  the  county  clerk, 
and  publishing,  shall  operate  as  a  trade- 
mark, securing  to  the  said  manufacturer 
the  full  protection  of  the  law  as  a  trade- 
mark, entitling  the  said  manufacturer  to 
the  sole  and  exclusive  use  in  Texas  of 
said  mark,  name,  or  device;  for  which 
services  the  clerk  shall  be  allowed  the 
sum  of  one  dollar,  to  be  paid  by  the 
party  having  such  brands,  etc.,  recorded. 
12  Texas,  Art.  318d.  Every  person,  as- 
sociation or  union  of  workingmen,  in- 
corporated or  unincorporated,  that  has 
heretofore  or  shall  hereafter  adopt  a 
label,  trade-mark,  design,  device,  im- 
print or  form  of  advertisement,  shall 
file  the  same  in  the  office  of  the  secre- 
tary of  state  by  leaving  two  copies, 
counterparts,  or  facsimiles  thereof,  with 
the  secretary  of  state,  and  said  secre- 
tary shall  deliver  back  to  such  person, 
association  or  union  so  filing  the  same 
one  of  said  copies,  counterparts  or  fac- 
similes, along  with  and  attached  to  a 
duly  attested  certificate  of  the  filing  of 
same,  for  which  he  shall  receive  a  fee 
of  one  dollar  from  such  person,  associa- 
tion or  union.  Such  certificate  of  filing 
shall  in  all  suits  and  prosecutions  under 
this  chapter  be  sufficient  proof  of  the 
adoption  of  such  label,  trade-mark,  de- 
sign, device,  imprint  or  form  of  ad- 
vertisement, and  of  the  right  of  such 
person,  association  or  union  to  adopt  the 
same.  No  label,  trade-mark,  design,  de- 
vice, imprint  or  form  of  advertisement 
shall  be  filed  as  aforesaid  that  would 
probably  be  mistaken  for  a  label,  trade- 
mark, design,  device,  imprint  or  form 
of  advertisement  already  of  record;  pro- 
vided, that  no  person  or  association 
shall  be  permitted  to  register  as  a  label, 
trade-mark,  design,  device,  imprint  or 
form  of  advertisement,  any  emblem,  de- 
sign or  resemblance  thereto  that  has 
been  adopted  or  used  by  any  charitable, 
benevolent  or  religious  society  or  asso- 
ciation without  their  cons2nt,  and  pro- 
vided, further,  that  all  persons,  institu- 
tions or  associations  now  using  a  label, 
trade-mark,    design,    device,    imprint    or 


form  of  advertisement  shall  have  thirty 
days'  time  after  this  law  takes  effect  in 
which  to  file  such  label,  trade-mark,  de- 
sign, device,  imprint  or  form  of  adver- 
tisement under  the  provisions  of  this 
law,  before  the  same  can  be  registered 
by  others. 

j  Utah,  §  2720.  The  phrase  "trade- 
mark," as  used  in  this  title,  includes 
every  description  of  word,  letter,  device, 
emblem,  stamp,  imprint,  brand,  printed 
ticket,  label,  or  wrapper  usually  affixed 
by  any  mechanic,  manufacturer,  drug- 
gist, merchant,  tradesman,  association, 
or  union,  whether  incorporated  or  unin- 
corporated, to  denote  any  goods  to  be 
goods  imported,  manufactured,  produced, 
compounded,  or  sold  by  him,  or  by  such 
association  or  union,  other  than  any 
name,  word,  or  expression  generally  de- 
noting any  goods  to  be  of  some  particu- 
lar class  or  description. 

k  Washington,  §  9492.  Whenever  any 
person,  or  any  association  or  union  of 
workingmen  has  heretofore  adopted  or 
used,  or  shall  hereafter  adopt  or  use,  and 
has  filed  as  hereinafter  provided  any 
label,  trade-mark,  term,  design,  device 
or  form  of  advertisement  for  the  pur- 
pose of  designating,  making  known,  or 
distinguishing  any  goods,  wares,  mer- 
chandise or  other  product  of  labor,  as 
having  been  made,  manufactured,  pro- 
duced, prepared,  packed  or  put  on  sale 
by  such  person  or  association  or  union 
of  workingmen  or  by  a  member  or  mem- 
bers of  such  association  or  union,  it  shall 
be  unlawful  to  counterfeit  or  imitate 
such  label,  trade-mark,  term,  design,  de- 
vice or  form  of  advertisement,  or  to 
use,  sell,  offer  for  sale,  or  in  any  way 
utter  or  circulate  any  counterfeit  or 
imitation  of  any  such  label,  trade-mark, 
term,  design,  device  or  form  of  adver- 
tisement. 

1  Wisconsin,  §  1747a.  1.  Any  person, 
firm,  copartnership,  corporation,  asso- 
ciation, or  union  of  workingmen,  which 
has  heretofore  adopted  or  used  or  shall 
hereafter  adopt  or  use  any  label,  trade- 
mark, trade-name,  term,  design,  pattern, 
model,  device,  shop-mark,  drawing,  spe- 
cification, designation,  or  form  of  ad- 
vertisement, for  the  purpose  of  designat- 
ing, making  known,  or  distinguishing 
any  goods,  wares,  merchandise,  or  other 
product  of  labor  or  manufacture  as  hav- 
ing been  made,  manufactured,  produced, 
prepared,  packed,  or  put  on  sale  by 
such    person,    firm,    copartnership,    cor- 


Ch.  CXIX.] 


CODE  PROVISIONS. 


1611 


poration,  association,  or  union  of  work- 
ingmen,  or  by  a  member  or  members 
thereof,  he  or  they,  if  residents  of  this 
or  any  other  state  of  the  United  States, 
and  such  foreign  corporations  as  may 
have  been  duly  licensed  to  transact  busi- 
ness in  the  state  of  Wisconsin,  may  file 
an  original,  a  copy,  or  photographs,  or 
cuts  with  specifications  of  the  same 
for  record  in  the  office  of  the  secre- 
tary of  state,  by  leaving  two  such 
originals,  copies,  photographs,  or  cuts 
with  specifications,  the  same  being  coun- 
terparts, *  •  *  facsimiles,  or  draw- 
ings thereof,  with  said  secretary  and 
by  filing  therewith  a  sworn  state- 
ment, specifying  the  name  of  the  person, 
firm,  copartnership,  corporation,  asso- 
ciation, or  union  of  workingmen,  on 
whose  behalf  such  label,  trade-mark, 
term,  trade-name,  pattern,  model,  de- 
sign, device,  shop-mark,  drawing,  speci- 
fication, designation,  or  form  of  adver- 
tisement is  to  be  filed,  the  class  of  mer- 
chandise and  a  separate  description  of 
the  goods  to  which  the  same  has  been 
or  is  intended  to  be  appropriated,  the 
residence,  location,  or  place  of  business 
of  such  party,  that  the  party,  on  whose 
behalf  such  label,  trade-mark,  trade- 
name, term,  design,  pattern,  model,  de- 
vice, shop-mark,  drawing,  specification, 
designation,  or  form  of  advertisement  is 
to  be  filed,  has  the  right  to  the  use  of 
the  same,  and  that  no  other  person,  or 
persons,  firm,  copartnership,  corpora- 
tion, association,  or  union  of  working- 
men  *  *  *  has  such  right  either  in 
the  identical  form  or  in  any  such  near 
resemblance  thereto  as  may  be  calcu- 
lated to  deceive,  and  that  the  originals, 
copies,  photographs,  or  cuts,  counter- 
parts *  *  *  facsimiles,  or  drawings 
filed  therewith  are  correct.     *     *     » 

2.  Where  the  several  parts  of  a  sin- 
gle unit  article  of  trade  or  commerce 
are  severally  marked  to  distinguish  them 
by  the  person,  firm,  copartnership,  cor- 
poration, association,  or  union  of  work- 
ingmen having  the  right  to  manufac- 
ture such  single  unit  under  a  trade-name 
or  brand  used  by  him  or  them,  such 
person.  Arm,  copartnership,  corporation, 
association,  or  union  may,  in  filing  under 
this  section  the  designation  of  such 
trade-name  or  brand,  attach  thereto 
photographs  or  cuts  with  specifications 
of  the  several  parts  of  the  unit  to  which 
it  is  attached  or  applied,  and  thereafter 
no   further   filing  or  registration   of   any 


such  parts  so  used  shall  be  necessary  to 
protect  the  owner  or  lawful  use  of  the 
trade-name  or  brand  of  the  unit  against 
the  use  by  others  of  any  of  the  several 
parts  thereof,  and  any  such  filing  shall 
be  construed  to  be  a  single  filing,  and 
but  one  filing  fee  shall  be  paid  therefor. 
*  *  *  (Amended  May  13,  1909.  Laws 
1909,  ch.  127,  p.  688.) 

m  Wyoming,  §  2526.  Any  person,  as- 
sociation or  union  may  adopt  a  label, 
trade-mark,  stamp  or  form  of  adver- 
tisement not  previously  owned  or  adopted 
by  any  other  person,  association  or 
union,  and  may  file  the  same  for  record 
in  the  office  of  the  secretary  of  state, 
by  leaving  two  copies,  counterparts  or 
facsimiles  thereof,  with  said  secre- 
tary; and  shall  file  therewith  a  certifi- 
cate specifying  the  name  or  names  of 
the  person,  association  or  union  so  filing 
such  label,  trade-mark,  stamp  or  form 
of  advertisement,  his  or  its  residence, 
location  or  place  of  business,  the  class 
of  merchandise  and  the  particular  de- 
scription of  goods  comprised  in  such 
class  to  which  it  has  been  or  is  intended 
to  be  appropriated,  and  the  length  of 
time,  if  any,  during  which  it  has  been 
in  use.  Such  certificate  shall  be  ac- 
companied by  a  written  declaration, 
verified  under  oath  by  the  person  or 
some  officer  of  the  association  or  union 
by  whom  it  is  filed,  to  the  effect  that 
the  party  so  filing  such  label,  trade- 
mark, stamp  or  form  of  advertisement, 
has  a  right  to  the  use  of  the  same,  and 
that  no  other  person,  firm,  association, 
union  or  corporation  has  the  right  to 
such  use,  either  in  the  identical  form 
or  in  any  such  near  resemblance  thereto 
as  may  be  calculated  to  deceive  ami 
that  the  facsimiles,  copies  or  counter- 
parts filed  therewith  are  true  and  cor- 
rect. There  shall  be  paid  for  such  filing 
the  fee  of  five  dollars.  Said  secretary 
shall  deliver  to  such  person,  association 
or  union  so  filing  the  same,  a  duly  at- 
tested certificate  of  the  record  of  the 
same,  for  which  he  shall  receive  the 
fee  of  five  dollars.  Such  certificate  of 
record  shall,  in  all  suits  and  prosecu- 
tions under  this  chapter,  be  sufficient 
proof  of  the  adoption  of  such  label, 
stamp,  trade-mark  or  form  of  adver- 
tisement. No  label,  trade-mark,  stamp 
or  form  of  advertisement  shall  be  re- 
corded that  would  reasonably  be  mis- 
taken for  a  label,  trade-mark,  stamp  or 
form  of  advertisement  already  on  record. 


)f!12  TRADE-MARKS,  ETC.  [Tit.  XIV. 

Right  to  good-will  of  business. 

California,  §  992.  The  good-will  of  a  business  is  the  expectation 
of  continued  public  patronage,  but  it  does  not  include  a  right  to 
use  the  name  of  any  person  from  whom  it  was  acquired.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  4566.     North  Dakota,  Rev.  Codes  1905,  §  4922. 
Oklahoma,  Rev.  and  Ann.   Stats.   1903    (Wilson),    §4176;    Comp.  Laws   1909 
(Snyder),  §  7362.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §  893. 

§411.     COMPLAINT   [OR   PETITION]. 

FORM   No.  983 — To  restrain  infringement  of  trade-mark  and  for  damages. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  the  plaintiff  is,  and  ever  since  the  day  of  , 
19  ,  continuously  has  been,  the  manufacturer  and  vendor  of  an  arti- 
cle of  trade  known  as  ,  which  he  has  for  years  last  past 
offered  for  sale  and  sold  to  dealers  and  merchants  generally  in 
packages  [or  bottles],  labeled  with  his  own  proper  device  and  trade- 
mark, adopted  by  plaintiff  for  that  purpose  in  the  year  19  ;  that  the 
following  is  a  copy  of  said  label  and  trade-mark :    [Here  insert  copy.] 

2.  That  by  reason  of  the  long  experience  and  great  care  of  plaintiff 
in  his  said  business  and  in  the  preparation  of  said  article,  and  the 
good  quality  of  the  same,  said  article  became  widely  known  to  the 
trade  and  in  the  communities  generally  where  sold  as  a  valuable  and 
useful  article,  and  acquired  a  high  reputation  as  such,  and  has  com- 
manded an  extensive  sale  at  and  elsewhere;  that  the  sale  of 
said  article  aforesaid  has  been  a  source  of  great  profit  to  plaintiff. 

3.  That  on  the  day  of  ,  19  ,  and  while  the  defendant 
knew  of  plaintiff's  right  to  said  trade-mark,  and  ever  since  there- 
after, the  defendant,  without  leave  or  consent  of  the  plaintiff,  caused 
a  similar  and  inferior  article  to  be  put  up  in  similar  packages  [or 
bottles]  and  labeled  with  a  similar  label;  that  said  similar  label  is  an 
imitation  of  plaintiff's  said  label;  that  the  following  is  a  copy  of  said 
label  used  by  defendant :  [Here  insert  copy]  ;  that  said  inferior 
article  was  offered  for  sale,  and  sold  so  labeled  with  said  similar 
label;  that  said  inferior  article  so  labeled  and  offered  for  sale  and 
•old  by  defendant  is  calculated  to  deceive  and  mislead  the  purchasers 


Ch.  CXIX.]  COMPLAINT.— ANNOTATIONS.  1613 

and  consumers  of  plaintiff's  said  article,  and  actually  has  deceived 
and  continues  to  deceive  and  mislead  many,  and  causes  them  to  buy 
the  said  inferior  article  sold  by  defendant ;  that  thereby  the  general 
reputation  of  said  article  prepared  and  sold  by  plaintiff  has  been 
injured ;  that  all  of  the  acts  of  the  defendant  have  been  to  the  great 
detriment  and  diminution  of  the  business  and  profits  of  the  plaintiff, 
and  that  by  reason  thereof  the  plaintiff  has  been  greatly  injured,  to 
his  damage  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant :  That  he 
and  his  agents  and  servants  be  forever  enjoined  and  restrained 
from  preparing  and  from  selling  said  imitation  article,  labeled  with 
such  imitation  labels  of  plaintiff's  said  label;  and  that  defendant 
account  for  and  pay  over  to  the  plaintiff  all  profits  realized  by 
defendant  upon  sales  of  said  imitation  article  in  packages  [or  bot- 
tles] labeled  with  such  imitation  labels;  and  for  $  ,  damages; 
and  for  costs  and  such  other  relief  as  to  the  court  may  seem  proper. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

For  form  of  complaint  held  sufficient,  see  Ford  v.  Ames,  36  Hun.  571. 

§412.     ANNOTATIONS. 

State  legislation  as  to  trade- marks. — The  act  which  confers  upon  the  courts  of 
the  United  States,  in  general  terms,  jurisdiction  over  suits  for  infringement  of  a 
trade-mark  does  not  assume  to  take  away  or  impair  the  jurisdiction  which  the 
courts  of  the  several  states  always  had  over  such  suits:  In  re  Keasbey  v.  Mattison 
Co.,   160  U.   S.   221,   229. 

Assignee's  right  protected  by  injunction. — The  right  to  the  use  of  a  trade-name 
may  be  transferred  to  another,  and  the  right  so  transferred  will  be  protected  from 
infringement  by  injunction:    Spieker  v.  Lash,  102  Cal.  38,  36  Pac.  362. 

Injunction  may  issue  to  restrain  the  use  of  one's  own  name,  where  such  use  is 
made  with  such  additions  as  to  intentionally  deceive  the  public  and  make  then) 
believe  he  is  selling  the  goods  of  another:  McLean  v.  Fleming,  96  U.  S.  251;  Brown 
Chemical  Co.  v.  Meyer,  139  U.  S.  542;  California  Fig  Syrup  Co.  v.  Improved  Fig 
Syrup  Co.,  51  Fed.  Rep.  297;  Improved  Fig  Syrup  Co.  v.  California  Fig  Syrup  Co.,  54 
Fed.  Rep.  178. 

Labor  unions. — Right  to  trade-names. — For  the  substance  of  a  complaint  in  an 
action  by  a  labor  union,  brought  through  its  officers  and  members,  to  enjoin  the 
fraudulent  use  of  a  trade-mark,  held  sufficient  (the  order  overruling  a  demurrer 
thereto  affirmed  on  appeal  by  an  equally  divided  court),  see  Allen  v.  McCarthy,  37 
Minn.  349.  But  see,  as  to  right  to  use  a  distinctive  symbol  not  proprietary  within 
the  meaning  of  the  trade-mark  acts  Cigarmakers  Protective  Union  v.  Conhaim,  40 
Minn.  243,   247. 

Requisites  of  complaint. — In  order  to  warrant  an  injunction  the  bill  must  allege: 
(1)  Existence  of  trade-mark,  (2)  the  fact  of  imitation,  either  actual  or  colorable; 
and  (3)  the  fact  that  such  imitation  is  made  without  license  or  acquiescence  of 
the  complainant:  Gaines  &  Co.  v.  Sroufe,  117  Fed.   (C.  C.)  965. 

Counterclaim.— The  rights  of  a  defendant  to  the  good-will  of  a  business  and  a 
trade-name  may   be  asserted  by   way  of  counterclaim   in  an  action  in   which   the 


1614  CIVIL  DAMAGE  ACTIONS.  [Tit.  XIV. 

plaintiff  sues  to  enjoin  the  use  of  such  name.  It  is  held  that  such  claim  on  the 
part  of  the  defendant  is  inseparable  from  the  subject-matter  of  such  controversy, 
and  therefore  within  the  scope  of  a  statute  allowing  a  counterclaim  for  a  cause  of 
action  connected  with  the  subject  of  the  action:  The  G.  &  H.  Mfg.  Co.  v.  Hall,  61 
N.  Y.  226,  236. 


CHAPTER  CXX. 

Actions  under  Civil    Damage  Acts. 

Page 

§  413.  Complaint  [or  petition]    1614 

Form  No.  984.  For  civil  damages  for  selling  intoxicating  liquor 

to  a  minor  son 1614 

§  414.  Annotations 1615 

§413.     COMPLAINT   [OR   PETITION]. 

FORM   No.  984 — For  civil  damages  for  selling  intoxicating  liquor  to  a  minor 
son. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  he  is  the  father  of  C.  B.,  a  minor,  of  the  age  of  years ; 
that  said  C.  B.   resided  with  the   plaintiff   on  his  farm   in 
County,  in  this  state,  and  assisted  plaintiff  in  carrying  on  the  work 
of  said  farm,  and  was  a  means  of  support  to  plaintiff  until  the  date 
hereinafter  mentioned. 

2.  That  the  defendant  Y.  Z.  is,  and  during  the  times  herein  men- 
tioned continuously  has  been,  the  owner  of  a  certain  lot  and  building 
in  the  village  of  ,  county  of  ,  in  this  state,  which  building 
is  kept  as  a  hotel  by  the  said  Y.  Z.,  known  as  the  Hotel. 

3.  That  prior  to  the  month  of  ,  19  ,  defendant  Y.  Z.  leased 
to  the  defendant  "W.  X.  a  room  in  the  basement  of  said  building  for  a 
barroom,  with  knowledge  that  intoxicating  liquors  were  to  be  sold 
therein,  and  during  the  month  of  ,  19  ,  defendant  W.  X.  kept 
a  bar  in  said  room  at  which  he  sold  intoxicating  liquors,  all  of  which 
was  done  with  the  knowledge  and  consent  of  defendant  Y.  Z. 

4.  That  on  or  about  [giving  date]  the  said  C.  B.  became  and  was 
intoxicated  at  the  village  of  aforesaid;  that  such  intoxication 
was  caused  in  whole  or  in  part  by  intoxicating  liquors  sold  or  given 
away  at  said  bar  by  defendant  W.  X.,  his  agents  or  servants. 

5.  That  in  consequence  of  said  intoxication  the  said  C.  B.  was  so 
injured  that  he  has  ever  since  been  sick,  and  for  the  greater  part  of 


€h.  CXX.] 


COMPLAINT.— ANNOTATIONS. 


1G1.") 


the  time  confined  to  his  bed  and  delirious,  and  plaintiff  has  been  put 
to  great  expense  for  medical  attendance,  nursing,  and  medicines  for 
his  said  minor  son,  and  has  been  wholly  deprived  of  his  labor  and 
services,  and  has  been  thereby  injured  in  his  property  and  means  of 
support,  and  has  sustained  damages  in  the  sum  of  $  t 

[Concluding  part.] 

Form  of  petition  in  an  action  to  recover  for  loss  of  support  of  the  husband  and 
father  caused  by  intoxication  from  liquors  furnished,  in  part  at  least,  by  the 
defendant:  Roberts  v.  Taylor,  19  Neb.  184,  185,  27  N.  W.  87,  88. 

Form  of  complaint  in  an  action  for  damages  for  injury  caused  by  sale  of  intoxi- 
cating liquors:    Buckmaster  v.  McElroy,  20  Neb.  557,  31  N.  W.  76,  57  Am.  Rep.  843. 

Right  of  action  under  civil  damage  laws. — Where  the  statute  provides  for  a  right 
of  action  against  a  person  making  unlawful  sales  of  intoxicating  liquors,  and  the 
bond  of  such  person  mentioned  in  the  act,  such  right  of  action  is  exclusive,  and 
no  action  can  be  maintained  under  such  statute  except  by  the  persons  named 
therein,  and  except  as  expressly  provided  in  the  statute:  Kennedy  v.  Garrigan 
(S.  Dak.),  121  N.  W.  783,  785,  citing  and  construing  Laws  1897,  p.  211,  ch.  72,  §  13. 

§414.     ANNOTATIONS.— Civil  damage  acts. 

1.  Nature   of  acts. — Constitutionality. 
2-5.  Parties  to  action. 

6.  Averment  as   to   kind  of  liquor  sold   unnecessary. 
7,  8.  Damages. — Compensatory    and    exemplary. 

9.  Contributory   negligence. 


1.  Nature  of  acts. — Constitutionality. — 
The  civil  damage  acts  are  purely  stat- 
utory: Farrell  v.  Drees,  41  Wis.  186;  and 
such  acts  are  generally  held  to  be  con- 
stitutional: Franklin  v.  Schermerhorn, 
8  Hun  112;  Bertholf  v.  O'Reilly,  74  N.  Y. 
509,  30  Am.  Rep.  323;  State  v.  Luding- 
ton,  33  Wis.   107. 

2.  Parties  to  action. — A  poor  person 
dependent  for  support  upon  a  relative 
under  the  provisions  of  the  statute  may 
maintain  action  in  his  own  name  and 
for  his  own  benefit,  where  he  has  been 
deprived  of  such  support  through  the 
acts  of  a  vendor  of  intoxicating  liquors, 
and  this  independently  of  action  by  the 
county  commissioners  for  the  offense: 
Fitzgerald  v.  Donoher,  48  Neb.  852,  67 
N.   W.   880. 

3.  The  wife  may  sue  in  her  own  right, 
or  she  may  join  the  children  with  her: 
Wardell  v.  McConnell,  23  Neb.  152,  36 
N.  W.  278;  or  the  widow  may  sue:  Fink 
v.  Garman,  40  Pa.  (4  Wright)  95;  or 
any  minor  child  injured,  within  the  con- 
templation of  the  acts:  Bloedel  v.  Zim- 
merman, 41  Neb.  695,  60  N.  W.  6,  (in 
which  case  the  sureties  on  the  bond  of 
the  liquor-seller  were  held  to  be  prop- 
erly joined   as   defendants) ;   or  a  father 


where  he  is  wholly  dependent  upon  his 
son  may  sue:  Stevens  v.  Cheney,  36 
Hun  1;  or  the  mother;  Clinton  v.  lean- 
ing, 61  Mich.  355,  28  N.  W.  125,  (where 
the  son  was  an  adult) ;  or  the  parent  of 
a  minor:  McNeil  v.  Collinson,  130  Mass. 
167;  or,  generally,  any  person  injured 
as  a  result  of  the  intoxication,  the  stat- 
ute so  reading:  Flower  v.  Witkovsky, 
69  Mich.   371,   37  N.   W.   364. 

4.  The  intoxicated  person  himself  may 
under  certain  statutes  recover  against 
the  saloon-keeper:  Buckmaster  v.  Mc- 
Elroy, 20  Neb.  557,  31  N.  W.  76,  57  Am. 
Dec.   843. 

5.  A  physician  who  rendered  profes- 
sional services  to  an  intoxicated  person, 
held  not  entitled  to  sue  for  such  serv- 
ices under  a  statute  providing  that  one 
shall  be  liable  for  and  compelled  to  pay 
a  reasonable  compensation  "to  any  per- 
son who  may  take  charge  of  and  pro- 
vide for  such  intoxicated  person,"  etc.: 
Samson  v.  Greenough,  55  Iowa  127,  7  N 
W.    4S2. 

6.  Averment  as  to  kind  of  liquor  sold 
unnecessary. — The  complaint  is  not  re- 
quired to  allege  the  kinds  of  liquor  sold: 
Edwards  v.  Brown,  67  Mo.  377;  nor 
necessarily  the  particular  place  of  sale: 


1616 


CIVIL  DAMAGE  ACTIONS. 


[Tit.  XIV. 


Gustafson   v.   Wind,    62   Iowa   281,    17   N. 
W.   523. 

7.  Damages. — As  to  measure  of  com- 
pensatory damages  under  civil  damage 
acts,  see  Goodenough  v.  McGrew,  44 
Iowa  670,  Huggins  v.  Kavanagh,  52 
Iowa  368,  3  N.  W.  409;  Sellars  v.  Foster, 
27  Neb.  118,  42  N.  W.  907;  Freese  v. 
Tripp,  70  111.  496;  Brantigam  v.  "While,  73 
111.  561;  Kearney  vFitzgerald,  43  Iowa  580. 

8.  As  to  exemplary  damages,  when 
and  when  not  allowed:  Meidel  v.  An- 
this,  71  111.  241;  Brannon  v.  Silvernail, 
81  111.  434;  Goodenough  v.  McGrew,  44 
Iowa  670;   Flint  v.  Gauer,   66  Iowa  696; 


Roose  v.  Perkins,  9  Neb.  304,  2  N.  W. 
715,  31  Am.  Dec.  409;  Neu  v.  McKechnie, 
95  N.  Y.   632,   47  Am.   Rep.   89. 

9.  Contributory  negligence  to  defeat 
the  action  must  be  that  of  the  plaintiff: 
Davies  v.  McKnight,  146  Pa.  610,  23  Atl. 
320,  (where  the  deceased  was  held  not 
guilty  of  contributory  negligence) ;  En- 
gelken  v.  Hilger,  43  Iowa  563,  (where 
wife's  acts  contributed  to  her  husband's 
intoxication) ;  Ward  v.  Thompson,  4& 
Iowa  588,  (where  the  acts  of  the  wife  in 
purchasing  liquor  for  her  husband  was 
held  not  contributory,  inasmuch  as  she 
acted    under    compulsion). 


TITLE  XV. 
Provisional  Remedies  in  Civil  Actions. 

Page 

Chapter  CXXI.     Arrest  and  Bail 1617 

CXXII.  Claim  and  Delivery  of  Personal  Property.— 

Replevin 1623 

CXXIII.     Injunction 1651 

CXXIV.     Attachment  and  Garnishment 1672 

CXXV.     Receivers 1702 

CXXVI.     Deposit  in  Court 1713 

CHAPTER    CXXI. 

Arrest  and  Bail. 

Page 

S  415.  Code  provisions 1617 

§  416.  References  to  forms 1622 

§  417.  Annotations 1622 

§41a.     CODE  PROVISIONS. 

Grounds  of  arrest  in  civil  cases. 
California,  §  479.    The  defendant  may  be  arrested,  as  hereinafter 
prescribed,  in  the  following  cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a  cause 
of  action  arising  upon  contract,  express  or  implied,  when  the  defend- 
ant is  about  to  depart  from  the  state  with  intent  to  defraud  his 
creditors. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property 
embezzled,  or  fraudulently  misapplied,  or  converted  to  his  own  use, 
by  a  public  officer,  or  an  officer  of  a  corporation,  or  an  attorney, 
factor,  broker,  agent,  or  clerk,  in  the  course  of  his  employment  as 
such,  or  by  any  other  person  in  a  fiduciary  capacity ;  or  for  miscon- 
duct or  neglect  in  office,  or  in  a  professional  employment,  or  for  a 
wilful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  when  the  property  or  any  part  thereof  has  been 
concealed,  removed,  or  disposed  of,  to  prevent  its  being  found  or 
taken  by  the  sheriff. 

(1617) 


1618 


ARREST  AND  BAIL. 


[Tit.  XV. 


4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contracting- 
the  debt  or  incurring  the  obligation  for  which  the  action  is  brought;, 
or  in  concealing  or  disposing  of  the  property  for  the  taking,  deten- 
tion, or  conversion  of  which  the  action  is  brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  property,, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors.  (Kerr's 
Cyc.  Code  Civ.  Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the- 
provisions  differ,  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

*  Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §  99.    b  Arkansas,  Dig.  of  Stats. 

1904  (Kirby),  §300.     <=  Idaho,  Rev.  Codes  1909,  §4241.     i  Kansas,  Gen.  Stats. 

1905  (Dassler),  §5030.  e  Montana,  Rev.  Codes  1907,  §6596.  t  Nebraska, 
Comp.  Stats.  Ann.  1909,  §  7124;  Ann.  Stats.  1909  (Cobbey),  §  1556.  s  Nevada, 
Comp.  Laws  Ann.  1900  (Cutting),  §3168.  b  North  Dakota,  Rev.  Codes  1905, 
§6890.  i  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot.),  §260.  i  South 
Dakota,  Rev.  Codes  1903,  C.  C.  P.  §  157.  *  Utah,  Comp.  Laws  1907,  §  3010. 
i  Washington,  Code  1910  (Rem.  &  Bal.),  §  749.  m  Wisconsin,  Stats.  1898  (San,. 
&  Ber.  Ann.),  §2689.     n  Wyoming,  Rev.  Stats.  1899,  §3959. 


a  Alaska,  C.  C.  P.  §  99.  No  person 
shall  be  arrested  in  any  civil  action  at 
law  except  as  provided  in  this  section. 
The  defendant  may  be  arrested  in  the 
following  cases: 

First.  In  an  action  for  the  recovery  of 
money  or  damages  when  the  defendant 
is  about  to  remove  from  the  district 
with  intent  to  defraud  his  creditors,  or 
when  the  action  is  for  any  injury  to  per- 
son, or  for  wilfully  injuring  or  wrong- 
fully taking,  detaining,  or  converting 
property. 

Second.  In  an  action  for  a  fine  or  pen- 
alty, or  for  money,  or  for  property  em- 
bezzled or  fraudulently  misapplied  or 
converted  to  his  own  use  by  a  public 
officer,  or  by  an  attorney,  or  by  an  offi- 
cer or  agent  of  a  corporation  in  the 
course  of  his  employment  as  such,  or 
by  any  factor,  agent,  broker,  or  other 
person  in  a  fiduciary  capacity,  or  for  any 
misconduct  or  neglect  in  office  or  in  a 
professional    employment. 

Third.  In  an  action  to  recover  the  pos- 
session of  personal  property  unjustly  de- 
tained, when  the  property  or  any  part 
thereof  has  been  concealed,  removed,  or 
disposed  of,  so  that  it  can  not  be  found 
or  taken  by  the  marshal,  and  with  in- 
tent that  it  should  not  be  so  found  or 
taken,  or  with  intent  to  deprive  the 
plaintiff  of   the  benefit  thereof. 


Fourth.  When  the  defendant  has  been 
guilty  of  a  fraud  in  contracting  a  debt, 
or  incurring  the  obligation  for  which  the 
action  is  brought,  or  in  concealing  or 
disposing  of  the  property  for  the  taking, 
detention,  or  conversion  of  which  the  ac- 
tion  is   brought. 

Fifth.  When  the  defendant  has  re- 
moved or  disposed  of  his  property,  or  is 
about  to  do  so,  with  intent  to  defraud 
his  creditors. 

But  no  female  shall  be  arrested  in  any 
action  except  for  injury  to  person,  char- 
acter, or  property. 

b  Arkansas,  §300.  An  order  for  the 
arrest  of  the  defendant  shall  be  made 
by  the  clerk  of  the  court  in  which  the 
action  is  brought  at  its  commencement 
or  at  any  time  before  judgment,  when 
there  is  filed  in  his  office  an  affidavit  of 
the  plaintiff,  showing  in  all  cases  of  ar- 
rest on  civil  process: 

First.  The  nature  of  the  plaintiff's 
claim  or  debt,  and  charging  the  defend- 
ant with  fraud  in  contracting  the  same. 

Second.  That  it  is  just. 

Third.  The  amount  or  value  which  the- 
affiant  believes  the  plaintiff  ought  to  re- 
cover. 

Fourth.  That  the  affiant  believes 
either  that  the  defendant  i«  about  to- 
depart  from  this  state,  and,  with  the  in- 
tent  to   defraud    his   creditors,    has    con- 


Ch.  CXXL] 


CODE  PROVISIONS. 


1611> 


cealed  or  removed  from  this  state  his 
property,  or  so  much  thereof  that  the 
process  of  the  court,  after  judgment, 
can  not  be  executed,  or  that  the  defend- 
ant has  money  or  securities  for  money, 
or  evidence  of  debt,  in  the  possession  of 
himself,  or  of  others  for  his  use,  and  is 
about  to  depart  from  this  state  without 
leaving  property  therein  sufficient  to 
satisfy  the  plaintiff's  claim. 

c  Idaho,  §  4241.  The  defendant  may 
be  arrested  as  hereinafter  prescribed,  in 
the  following  cases: 

1.  In  an  action  for  the  recovery  of 
money  or  damages  on  a  cause  of  action 
arising  upon  a  contract  express  or  im- 
plied where  the  defendant  is  about  to 
ilepart  from  the  state  with  intent  to 
defraud  his  creditors,  or  when  the  action 
is  for  wilful  injury  to  person,  to  char- 
acter, or  to  property,  knowing  the  prop- 
erty to  belong  to  another; 

2.  In  an  action  for  a  fine  or  penalty,  or 
on  a  promise  to  marry,  or  for  money  or 
property  embezzled,  or  fraudulently  mis- 
applied, or  converted  to  his  own  use,  by 
a  public  officer  or  an  officer  of  a  cor- 
poration, or  an  attorney,  factor,  broker, 
agent  or  clerk,  in  the  course  of  his  em- 
ployment as  such  or  by  any  other 
person  in  a  fiduciary  capacity;  or  for 
misconduct  or  neglect  in  office  or  in  a 
professional  employment  or  for  a  wilful 
violation  of  duty;  (Remainder  same  as 
Cal.   C.   C.   P.    §  479.) 

a  Kansas,  §  5030.  An  order  for  the  ar- 
rest of  the  defendant  shall  be  made  by 
the  clerk  of  the  court  in  which  the  ac- 
tion is  brought,  when  there  is  filed  in  his 
office  an  affidavit  of  the  plaintiff,  his 
authorized  agent  or  attorney,  stating  the 
nature  of  the  plaintiff's  claim,  that  it  is 
just,  and  the  amount  thereof,  as  nearly 
as  may  be,  and  showing  one  or  more  of 
the  following  particulars: 

First.  That  the  defendant  has  removed 
or  begun  to  remove  any  of  his  property 
out  of  the  jurisdiction  of  the  court,  with 
intent  to   defraud   his   creditors. 

Second.  That  he  has  begun  to  convert 
his  property  or  a  part  thereof  into 
money,  for  the  purpose  of  placing  it  be- 
yond the  reach  of  his  creditors. 

Third.  That  he  has  property  or  rights 
of  action  which  he  fraudulently  conceals. 

Fourth.  That  he  has  assigned,  removed 
or  disposed  of,  or  has  begun  to  dispose 
of  his  property  or  a  part  thereof,  with 
intent  to  defraud   his  creditors. 


Fifth.  That  he  fraudulently  contracted 
the  debt  or  incurred  the  obligation  for 
which  suit  is  about  to  be  or  has  been 
brought.  The  affidavit  shall  also  con- 
tain a  statement  of  the  facts  claimed  to 
justify  the  belief  In  the  existence  of 
one  or  more  of  the  above  particulars. 
(Re-enacted  Mch.  12,  1909,  Laws  1909,  p. 
329,  C.  C.  P.  §  148.) 

e  Montana,  §  GG96,  first  sub.  same  as 
first  sub.  of  Idaho  §  4241,  remainder 
same  as  subs.  2  to  5  inclusive  of  Cal.  C. 
C.  P.  §  479. 

f  Nebraska.  There  is  now  no  provis- 
ions for  the  arrest  of  a  defendant  in  a 
civil  action  on  mesne  process;  but  §  7124 
provides  for  the  issuance  of  an  execution 
against  the  person  of  the  debtor  upon  a 
money  judgment  in  certain  cases. 

g  Nevada,  §  3168,  substantially  same  as 
Cal.  C.  C.  P.  §  479,  except  at  the  end  of 
first  sub.  add  "or  when  the  action  is  for 
libel  or  slander."  Also  in  the  last  clause 
of  sub.  three  change  the  words  "to  pre- 
vent its  being"  to  read  "so  that  it  can- 
not be"   before  the  word   "found." 

h  North  Dakota,  §  6S90.  The  defend- 
ant may  be  arrested  as  hereinafter  pre- 
scribed in  the  following  cases: 

1.  In  an  action  for  the  recovery  of 
damages  for  any  injury  to  person  or 
character,  or  for  injuring  or  for  wrong- 
fully taking,  detaining  or  converting 
property. 

2.  In  an  action  for  money  or  property 
embezzled  or  fraudulently  misapplied  or 
converted  to  his  own  use  by  a  public 
officer,  or  an  officer  of  a  corporation, 
or  an  attorney,  factor,  broker,  agent  or 
other  person  in  a  fiduciary  capacity,  in 
the   course   of   his   employment   as   such. 

3.  In  an  action  to  recover  the  posses- 
sion of  personal  property  unjustly  de- 
tained, when  the  property,  or  any  part 
thereof,  has  been  concealed,  removed 
or  disposed  of,  so  that  he  [it]  cannot  be 
found  or  taken  by  the  sheriff  and  with 
the  intent  that  it  should  not  be  found 
or  taken,  or  with  intent  to  deprive  the 
plaintiff   of   the    benefit    thereof. 

4.  When  the  defendant  has  been 
guilty  of  a  fraud  in  contracting  the 
debt,  or  in  incurring  the  obligation  for 
which  the  action  is  brought,  or  in  con- 
cealing or  disposing  of  the  property,  for 
the  taking,  detention  or  conversion  of 
which  the  action  is  brought,  or  when 
the  action  is  brought  to  recover  dam- 
ages for  fraud  or  deceit. 


1620 


ARREST  AND  BAIL. 


[Tit.  XV. 


5.  When  the  defendant  has  removed 
or  disposed  of  his  property  or  is  about 
to  do  so  with  the  intent  to  defraud  his 
creditors. 

But  no  female  shall  be  arrested  in  any 
action  except  for  wilful  injury  to  per- 
son,  character  or  property. 

1  Oregon,  §  260.  No  person  shall  be 
arrested  in  an  action  at  law,  except  as 
provided  in  this  section.  The  defend- 
ant may  be  arrested  in  the  following 
cases: 

1.  In  an  action  for  the  recovery  of 
money  or  damages  on  a  cause  of  action 
arising  out  of  contract,  when  the  de- 
fendant is  not  a  resident  of  the  state,  or 
is  about  to  remove  therefrom,  or  when 
the  action  is  for  an  injury  to  person  or 
character,  or  for  injuring  or  wrongfully 
taking,  detaining,  or  converting  prop- 
erty. 

2.  In  an  action  for  a  fine  or  penalty,  or 
on  a  promise  to  marry,  or  for  money  re- 
ceived, or  property  embezzled,  or  fraud- 
ulently misapplied,  or  converted  to  his 
own  use,  by  a  public  officer,  or  by  an  at- 
torney, or  by  an  officer  or  agent  of  a 
corporation  in  the  course  of  his  employ- 
ment as  such,  or  by  any  factor,  agent, 
broker,  or  other  person  in  a  fiduciary 
capacity,  or  for  any  misconduct  or  neg- 
lect in  office,  or  in  a  professional  em- 
ployment. 

Subs.  3,  4,  5  and  final  paragraph,  same 
as  Alaska  C.  C.  P.  §  99. 

]  South  Dakota,  C.  C.  P.  5  157.  The 
defendant  may  be  arrested,  as  herein- 
after prescribed,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of 
damages,  on  a  cause  of  action  not  arising 
out  of  contract,  where  the  defendant  is 
not  a  resident  of  the  state,  or  is  about  to 
remove  therefrom,  or  where  the  action  is 
for  an  injury  to  person  or  character,  or 
for  injuring,  or  for  wrongfully  taking, 
detaining  or  converting  property. 

2.  In  an  action  for  a  fine  or  penalty,  or 
on  a  promise  to  marry,  or  for  money  re- 
ceived, or  for  property  embezzled  or 
fraudulently  misapplied,  by  a  public  offi- 
cer, or  by  an  attorney,  solicitor,  or  coun- 
selor, or  by  an  officer  or  agent  of  a  cor- 
poration or  banking  association,  in  the 
course  of  his  employment  as  such,  or  by 
any  factor,  agent,  broker,  or  other  per- 
son in  a  fiduciary  capacity,  or  for  any 
misconduct  or  neglect  in  office,  or  in  a 
professional  employment. 

[Remainder  same  as  North  Dakota 
S  6890,   from  and  including  sub.   3  to  the 


end.]  (Re-enacted  Feb.  26,  1907,  Sess. 
Laws  1907,  pp.  165,   178.) 

k  Utah,  §  3010.  No  person  shall  be  ar- 
rested in  a  civil  action  except  an  ab- 
sconding debtor. 

1  Washington,  §749.  The  defendant 
may  be  arrested  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of 
damages,  on  a  cause  of  action  not  aris- 
ing out  of  contract,  where  the  defendant 
is  a  non-resident  of  the  state,  or  is  about 
to  remove  therefrom,  or  where  the  ac- 
tion is  for  an  injury  to  person  or  charac- 
ter, or  for  injuring,  or  for  wrongfully 
taking,  detaining,  or  converting  prop- 
erty; 

2.  In  an  action  for  a  fine  or  penalty,  or 
on  a  promise  to  marry,  or  for  money  re- 
ceived, or  property  embezzled,  or  fraudu- 
lently misapplied,  or  converted  to  his 
own  use,  by  a  public  officer,  or  by  an  at- 
torney, or  by  an  officer  or  agent  of  a 
corporation  in  the  course  of  his  employ- 
ment as  such,  or  by  any  factor,  agent, 
broker,  or  other  person  in  a  fiduciary  ca- 
pacity, or  for  any  misconduct  or  neglect 
in  office  or  in  a  professional  employ- 
ment; 

3.  In  an  action  to  recover  the  posses- 
sion of  personal  property  unjustly  de- 
tained, when  the  property,  or  any  part 
thereof,  has  been  concealed,  removed,  or 
disposed  of,  so  that  it  cannbt  be  found 
or  taken  by  tne  sheriff,  and  with  intent 
that  it  should  not  be  so  found  or  taken, 
or  with  the  intent  to  deprive  the  plaint- 
iff of  the  benefit  thereof; 

4.  When  the  defendant  has  been  guilty 
of  a  fraud  in  contracting  the  debt,  or 
incurring  the  obligation  for  which  the  ac- 
tion is  brought,  or  in  concealing  or  dis- 
posing of  the  property,  for  the  taking, 
detention,  or  conversion  of  which  the  ac- 
tion  is   brought; 

5.  When  the  defendant  has  removed  or 
disposed  of  his  property,  or  is  about  to 
do  so,  with  intent  to  defraud  his  cred- 
itors; 

6.  When  the  action  is  to  prevent 
threatened  injury  to  or  destruction  of 
property,  in  which  the  party  bringing 
the  action  has  some  right,  interest,  or 
title,  which  will  be  impaired  or  destroyed 
by  such  injury  or  destruction,  and  the 
danger  is  imminent  that  such  property 
will  be  destroyed  or  its  value  impaired, 
to  the  injury  of  the  plaintiff; 

7.  On  the  final  judgment  or  order  of 
any  court  in  this  state,  while  the  same 
remains  in  force,  when  the  defendant, 
having  no  property  subject  to  execution, 


Ch.  CXX1.] 


CODE  PROVIS1UX3. 


1621 


or  not  sufficient  to  satisfy  such  judg- 
ment, has  money  which  he  ought  to  ap- 
ply in  payment  upon  such  judgment, 
which  he  refuses  to  apply,  with  intent  to 
defraud  the  plaintiff,  or  when  he  refuses 
to  comply  with  a  legal  order  of  the  court, 
with  intent  to  defraud  the  plaintiff;  or 
when  any  one  or  more  of  the  causes  ex- 
ist for  which  an  arrest  is  allowed  in  the 
first  class  of  cases  mentioned  in  this  sec- 
tion. 

m  Wisconsin,  §  2689.  The  defendant 
may  be  arrested  as  hereinafter  pre- 
scribed in  the  following  cases: 

1.  In  an  action  for  the  recovery  of 
damages  on  a  cause  of  action  not  arising 
out  of  contract,  where  the  defendant  is 
not  a  resident  of  the  state,  or  is  about  to 
remove  therefrom,  or  where  the  action  is 
for  an  injuiy  to  person  or  character,  or 
for  seduction,  or  for  criminal  conversa- 
tion, or  for  injuring,  or  for  wrongfully 
taking,  detaining  or  converting  property, 
and  in  actions  to  recover  damages  for 
the  value  of  property  obtained  by  the  de- 
fendant under  false  pretenses  or  false 
tokens. 

2.  In  an  action  for  fine  or  penalty,  or 
for  money  received,  or  for  property  em- 
bezzled or  fraudulently  misapplied  by  a 
public  officer  or  by  an  attorney,  solicitor 
or  counsel,  or  by  an  officer  or  agent  of  a 
corporation  or  banking  association,  in  the 
course  of  his  employment  as  such,  or  by 
any  factor,  agent,  broker  or  any  person 
in  a  fiduciary  capacity,  or  for  any  mis- 
conduct or  neglect  in  office  or  in  a  pro- 
fessional employment. 

3.  In  an  action  to  recover  possession  of 
personal  property  unjustly  detained 
where  the  property  or  any  part  thereof 
has  been  concealed,  removed  or  disposed 


of  so  that  it  cannot  be  found  or  taken  by 
the  sheriff. 

But  no  female  shall  be  arrested  in  any 
action  except  for  a  wilful  injury  to  per- 
son, character  or  property. 

n  Wyoming,  §  3959.  An  order  for  the 
arrest  of  the  defendant  shall  be  made  by 
the  clerk  of  the  court  in  which  the  ac- 
tion is  brought,  when  there  is  filed  in  his 
office  an  affidavit  of  the  plaintiff,  his  au- 
thorized agent  or  attorney,  made  before 
a  judge  or  clerk  of  any  court  of  the  state, 
or  a  justice  of  the  peace,  stating  the  na- 
ture of  the  plaintiff's  claim,  that  it  is 
just,  and  the  amount  thereof,  as  nearly 
as  may  be,  and  establishing  one  or  more 
of  the  following  particulars: 

1.  That  the  defendant  has  removed,  or 
begun  to  remove,  any  of  his  property  out 
of  the  jurisdiction  of  the  court  with  in- 
tent to  defraud  his  creditors. 

2.  That  he  has  begun  to  convert  his 
property,  or  a  part  thereof,  into  money, 
for  the  purpose  of  placing  it  beyond  the 
reach  of  his  creditors. 

3.  That  he  has  property,  or  rights  of 
action,  which  he  fraudulently  conceals. 

4.  That  he  has  assigned,  removed,  dis- 
posed of,  or  begun  to  dispose  of,  his 
property,  or  a  part  thereof,  with  intent 
to  defraud  his  creditors. 

5.  That  he  fraudulently  contracted  the 
debt,  or  incurred  the  obligation,  for 
which  suit  is  about  to  be  or  has  been 
brought. 

6.  That  the  money,  or  other  valuable 
thing,  for  which  a  recovery  is  sought  in 
the  action,  was  lost  by  playing  any  game, 
or  by  means  of  a  bet  or  wager. 

The  affidavit  shall  also  contain  a  state- 
ment of  the  facts  claimed  to  justify  the 
belief  in  the  existence  of  one  or  more  of 
such   particulars. 


Proceedings  against  bail  in  civil  arrest. 

California,  §  490.  If  the  bail  neglect  or  refuse  to  pay  the  judgment 
within  ten  days  after  they  are  finally  charged,  an  action  may  be  com- 
menced against  such  bail  for  the  amount  of  the  original  judgment. 
(Kerr's  Gyc.  Code  Civ.  Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Alaska.  Ann.  Codes  1907,  C.  C.   P.    (Carter),   §105.     b  Arkansas,  Dig.  of 

Stats.  1904   (Kirby),  §327.     Idaho,  Rev.  Codes  1909,  §4252.     c  Kansas,  Gen. 

Stats.  1905   (Dassler),   §  5049.     Montana,  Rev.  Codes  1907,   §  6607.     Nevada. 

Jurv's  PL— 103. 


1()22  ARREST  AND  BAIL.  [Tit.  XV. 

Comp.  Laws  Ann.  1900  (Cutting),  §3179.  d  North  Dakota,  Rev.  Codes  1905, 
§6901.  e  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot),  §266.  *  South 
Dakota,  Rev.  Codes  1903,  C.  C.  P.  §  168.  Utah,  Comp.  Laws  1907,  §  3021. 
e  Washington,  Code  1910  (Rem.  &  Bal.),  §761.  hWisconsin,  Stats.  1898  (San. 
&  Ber.  Ann.),  §  2710.     »  Wyoming,  Rev.  Stats.  1899,  §  3978. 

a  Alaska,  C.  C.  P.  §  105.     In  case  of  the  d  North  Dakota,  §  6901,  same  as  Alaska 

failure  to  comply  with  the  undertaking,  C.  C.  P.   §  105. 

the  bail  may  be  proceeded  against  by  ac-  e  Oregon,   §  266,   same  as  Alaska,   C.   C. 

tion  'only.  P.  §  105. 

b  Arkansas,  §  327.     The  bail  can  be  pro-  t  South  Dakota,  C.  C.  P.  §  168,  same  as 

ceeded  against  in  a  separate  action  only.  Alaska  C.  C.  P.  §  105.     (Re-enacted  Feb. 

c  Kansas,    §  5049.     The   liability   of   the  26,  1907,  Sess.  Laws  1907,  pp.  165,  180.) 
bail   shall   be   fixed    in    the   manner   pro-  g  Washington,  §  761,  substantially  same 

vided  in  section  165,  for  fixing  the  liabil-  as  Alaska  C.  C.  P.  §  105. 
ity  of  the  sheriff  as  bail,  and  the  bail  can  h  Wisconsin,  §  2710,  substantially  same 

be  proceeded  against  in  an  action  only.  as  Alaska  C.  C.  P.  §  105. 
(Re-enacted  Mch.  12,  1909,  Laws  1909,  p.  i  Wyoming,    §  3978,    substantially   same 

329,  C.  C.  P.  §  167.)  as  Kansas  §  5049. 

§416.     REFERENCES  TO   FORMS. 

Affidavit  to  obtain  order  of  arrest,  ch.  XXIII,  form  No.  217. 

Undertaking  and  security  by  plaintiff  before  order  of  arrest  is  made,  ch. 
XXIII,  form  No.  218. 

Justification  of  sureties  on  undertaking,  ch.  XXIII,  form  No.  218. 

Order  for  arrest,  ch.  XXIII,  form  No.  219. 

Sheriff's  return  to  order  of  arrest,  ch.  XXIII,  form  No.  220. 

For  defense  of  justification  of  arrest  under  civil  process  in   action  for  false  im- 
prisonment, see  ch.  XXIII,  form  No.  210,  and  exhibits  thereto,  forms  Nos.  211-220. 
For  actions  upon  bonds  and  undertakings,  see  ch.  C,  forms  822-833. 

§417.     ANNOTATIONS. 

Constitutionality  of  provisions. — Provisions  of  the  statute  providing  for  arrest 
in  civil  cases  are  not  violative  of  the  constitution:  University  of  California  v. 
Bernard,  57  Cal.  212;  Dusy  v.  Helm,  59  Cal.  18S,   191. 

Right  governed  by  law  of  place  of  action. — The  right  to  arrest  a  defendant  in  a 
civil  action  is  a  part  of  the  remedy  afforded  the  plaintiff,  and  the  right  exists 
according  to  the  law  of  the  place  where  the  action  is  instituted,  without  any  regard 
to  the  domicile  of  the  parties,  the  origin  of  the  right,  or  the  country  of  the  act: 
Ex  parte  Howitz,   2  Cal.  App.   752,   753,  84  Pac.   229. 

Issue  of  fraud  essential.— No  judgment  of  imprisonment  can  be  rendered  in  pro- 
ceedings for  civil  arrest,  unless  the  issue  of  fraud  is  presented  by  the  pleadings: 
Matoon  v.  Eder,  6  Cal.  57,  58,  (upon  bail  bond  given  by  the  defendant  who  had 
been  arrested  on  mesne  process  in  an  action  for  debt  where  no  fraud  was  alleged 
in  the  complaint) ;  Davis  v.  Robinson,  10  Cal.  411,  412,  (for  civil  arrest  on  order 
issued    where   the   affidavit   alone    charged   fraud). 

It  has  ever  been  held  that  the  complaint  must  charge  fraud  before  mesne  process 
for  arrest  may  be  issued:  Ex  parte  Howitz,  2  Cal.  App.  752,  757,  84  Pac.  229, 
(proceeding  for  civil  arrest — affidavit  referring  to  and  adopting  averments  in  the 
complaint). 

Complaint  as  aider  of  affidavit. — Where  a  copy  of  a  complaint  is  annexed  to  the 
affidavit,  and  the  affiant  makes  oath  that  the  allegations  contained  therein  are  true. 


Ch.  CXXIL]               CLAIM  AND  DELIVERY.— REPLEVIN.  1623 

this  is  held  to  be  In  sufficient  compliance  with  the  requirements  of  the  law  that  It 

must  appear  from    the   affidavit   that   the   cause   exists:      Ex   parte  Howitz,    2   Cal. 
App.   752,   756,   84   Pac.   229,    (proceedings   for  civil   arrest.) 


CHAPTER   CXXM. 

Claim  and   Delivery  of  Personal  Property. — Replevin. 

Page 

§  418.  Code   provisions    1624 

§  419.  Affidavits,  undertakings,  etc 1633 

Form  No.  985.  Affidavit  for  claim  and  delivery 1633 

Form  No.  986.  Demand  directed  to  the  sheriff  to  take  property  1633 
Form  No.  987.  Undertaking  for  the  return  to  the  defendant  of 

property  taken  in  claim  and  delivery 1633 

Form  No.  988.  Approval  of  undertaking  by  sheriff 1634 

Form  No.  989.  Claim  of  property  by  third  person,  and  de- 
mand for  return  thereof   1634 

Form  No.  990.  Undertaking  on  behalf  of  plaintiff,  given  on 
claim  made  by  third  person  to  property  at- 
tached    1634 

Form  No.  991.  Undertaking  to  indemnify  sheriff 1635 

{  420.  Verdicts,  judgments,  and  executions 1635 

Form  No.  992.  Verdict  for  the  plaintiff.     (In  general.) 1635 

Form  No.  993.  Verdict  as  to  special  interest  and  damages....  1636 

Form  No.  994.  Alternative  judgment  for  plaintiff  in  replevin..  1636 

Form  No.  995.  Judgment  for  plaintiff  in  replevin.    (In  general.)  1637 

Form  No.  996.  Execution  in  replevin    1637 

§  421.  Complaints   [or  petitions]    1638 

Form  No.  997.  For  claim  and  delivery  of  personal  property...  1638 
Form  No.  998.  Goods  taken  from  possession  of  plaintiff's  as- 
signor      1639 

Form  No.  999.  To  recover  property  severed  from  realty 1639 

Form  No.  1000.  By  married   woman,   to   recover  possession   of 

separate  personal  property  or  value  thereof  1640 

J  422.  Answers    1641 

Form  No.  1001.  Defense  of  general  denial 1641 

Form  No.  1002.  Defense  that  title  is  in  another  than  plaintiff. .  1642 

Form  No.  1003.  Defense  that  defendant  is  part  owner 1642 

Form  No.  1004.  Defense  that  defendant  is  entitled  to  a  lien  on 

goods  for  storage   [or  freight] 1642 

Form  No.  1005.  Defense  by  common  carrier,  claiming  lien  for 
services. — In  replevin,  by  the  United  States 
of  America,   to   recover  goods   and   supplies 

transported    1643 

Form  No.  1006.  Defense  of  lien  for  services  for  manufacturing  16  44 


1624  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

Form  No.  1007.  Defense    by    sheriff. — Justification    of    taking 

under  attachment  1644 

Form  No.  1008.  Defenses — (1)  that  foreign  corporation  plaint- 
iff has  not  filed  articles  or  designated  resi- 
dent agent,  (2)  justification  of  the  taking  of 
outlawed  and  gambling  devices,  (3)  specific 
denials  of  values,  etc. — In  replevin,  by  for- 
eign corporation   1646 

§  423.  Annotations    1648 


§418.     CODE   PROVISIONS. 

Claim  and  delivery — Time  of  making  claim. 

California,  §  509.  The  plaintiff  in  an  action  to  recover  the  posses- 
sion of  personal  property  may,  at  the  time  of  issuing  the  summons, 
or  at  any  time  before  answer,  claim  the  delivery  of  such  property 
to  him  as  provided  in  this  chapter.     (Kerr's  Cyc.  Code  Civ.  Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §123.  b  Arizona,  Rev.  Stats. 
1901,  fl  3812.  c  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §  6853.  <J  Colorado,  Rev. 
Stats.  1908,  C.  C.  P.  §  85.  e  Hawaii,  Rev.  Laws  1905,  §  2101.  Idaho,  Rev. 
Codes  1909,  §  4271.  t  |0wa,  Ann.  Code  1897,  §  4163.  e  Kansas,  Gen.  Stats.  1905 
(Dassler),  §5058.  &  Minnesota,  Rev.  Laws  1905,  §4204.  i  Missouri,  Ann. 
Stats.  1906,  §4463.  Montana,  Rev.  Codes  1907,  §6622.  i  Nebraska,  Comp. 
Stats.  Ann.  1909,  §6723;  Ann.  Stats.  1909  (Cobbey),  §1152.  Nevada,  Comp. 
Laws  Ann.  1900  (Cutting),  §3194.  k  New  Mexico,  Comp.  Laws  1897,  §2685, 
sub-sec.  228.  i  North  Dakota,  Rev.  Codes  1905,  §  6917.  n>  Oklahoma,  Rev.  and 
Ann.  Stats.  1903  (Wilson),  §4351;  Comp.  Laws  1909  (Snyder),  §5687. 
n  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot.),  §284.  o  South  Dakota, 
Rev.  Codes  1903,  C.  C.  P.  §  184.  p  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  4864. 
Utah,  Comp.  Laws  1907,  §  3045.  i  Washington,  Code  1910  (Rem.  &  Bal.),  §  707. 
r  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §2717.  » Wyoming,  Rev.  Stats. 
1899,  §  4145. 

a  Alaska,  C.  C.  P.   §  123.     In  an  action  tion  of  judgment  in  the  cause,  file  his  af- 

to   recover   possession   of  personal   prop-  fidavit,  or  the  affidavit  of  some  other  per- 

erty,  the  plaintiff,  at  any  time  after  the  son  in  his  behalf,  showing: 

action   is   commenced,    and   before   judg-  1.  That   the   plaintiff   is    the   owner   of 

ment,  may  claim  the  immediate  delivery  the    property     claimed,     sufficiently    de- 

of    such    property,    as    provided    in    this  scribing  it,  or  is  lawfully  entitled  to  the 

chapter.  possession  thereof. 

b  Arizona,      fi  3812.      If      the      plaintiff  2.  That    it    is    wrongfully    detained    by 

claim  in  his  complaint  the  possession  of  the  defendant. 

specific  personal  property,  he  may  at  the  3.  The  actual  value  thereof, 

time    of   filing   his    complaint    or   at    any  4.  That   the  same  has  not   been  .seized 

other  time  afterwards,  before  the  rendl-  under  any  process,   execution  or  attach- 


Ch.  CXXII.] 


CODE  PROVISIONS. 


1625 


ment  against  the  property  of  the  plain- 
tiff, or,  if  so  seized,  that  it  is  by  statute 
exempt  from  such  seizure.  (Amended 
Mch.  19,  1903,  Laws  1903,  pp.  157,  160.) 

c  Arkansas,  §  6853,  substantially  same 
as  Alaska  C.  C.  P.  §  123,  except  insert 
"specific"   before    "personal   property." 

d  Colorado,  C.  C.  P.  §  85.  The  plaint- 
iff in  an  action  to  recover  possession  of 
personal  property,  may  at  the  time  of  fil- 
ing the  complaint,  or  issuing  the  sum- 
mons, or  at  any  time  before  judgment, 
claim  the  delivery  of  such  property  to 
him,  as  provided  in  this  chapter. 

e  Hawaii,  §  2101,  same  as  Cal.  C.  C.  P. 
§  509,  except  in  third  clause  after  the 
word  "before"  change  "answer"  to  "is- 
sue being  joined  in  such  action." 

f  Iowa,  §  4163.  An  action  of  replevin 
may  be  brought  in  any  county  in  which 
the  property  or  some  part  thereof  is  sit- 
uated. The  petition  must  be  verified  and 
must  state: 

1.  A  particular  description  of  the  prop- 
erty claimed; 

2.  Its  actual  value,  and,  where  there 
are  several  articles,  the  actual  value  of 
each; 

3.  The  facts  constituting  the  plaintiff's 
right  to  the  present  possession  thereof, 
and  the  extent  of  his  interest  in  the 
property,  whether  it  be  full  or  qualified 
ownership; 

4.  That  it  was  neither  taken  on  the  or- 
der or  judgment  of  a  court  against  him, 
nor  under  an  execution  or  attachment 
against  him  or  against  the  property;  but 
if  it  was  taken  by  either  of  these  modes, 
then  it  must  state  the  facts  constituting 
an  exemption  from  seizure  by  such  proc- 
ess; 

5.  The  facts  constituting  the  alleged 
cause  of  detention  thereof,  according  to 
his  best  belief; 

6.  The  amount  of  damages  which  the 
affiant  believes  the  plaintiff  ought  to  re- 
cover for  the  detention  thereof. 

g  Kansas,  §  5058.  The  plaintiff,  in  an 
action  to  recover  the  possessien  of  spe- 
cific personal  property,  may,  at  the  com- 
mencement of  the  suit,  or  at  any  time 
before  answer-day,  claim  the  immediate 
delivery  of  such  property,  as  provided  in 
this  chapter.  (Amended,  Mch.  12,  1909, 
Laws  1909,   p.   329,   C.   C.   P.    §176.) 

h  Minnesota,  §  4204,  substantially  same 
as  Cal.  C.  C.  P.  §  509,  except  insert  "im- 
mediate" before  "delivery"  in  last  clause. 

i  Missouri,  §  4463.  If  the  plaintiff  claim 
in  his  petition  the  possession  of  specific 
personal  property,  he  may,  at  the  time  of 


filing  his  petition,  or  at  any  other  time 
afterwards,  before  the  rendition  of  judg- 
ment in  the  cause,  file  his  affidavit,  or 
the  affidavit  of  some  other  person  in  his 
behalf,  showing:  First,  that  the  plaintiff 
is  the  owner  of  the  property  claimed 
(sufficiently  describing  it),  or  is  lawfully 
entitled  to  the  possession  thereof;  sec- 
ond, that  it  is  wrongfully  detained  by 
the  defendant;  third,  the  actual  value 
thereof;  fourth,  that  the  same  has  not 
been  seized  under  any  process,  execution 
or  attachment  against  the  property  of 
the  plaintiff;  and,  fifth,  that  plaintiff  will 
be  in  danger  of  losing  his  said  property, 
unless  it  be  taken  out  of  the  possession 
ot  the  defendant  or  otherwise  secured. 

j  Nebraska,  §  6723,  substantially  same 
as  Kansas  §  5058. 

k  New  Mexico,  §  26S5,  sub-sec.  228.  Any 
person  having  a  right  to  the  immediate 
possession  of  any  goods  or  chattels, 
wrongfully  taken  or  wrongfully  detained, 
may  bring  an  action  of  replevin  for  the 
recovery  thereof  and  for  damages  sus- 
tained by  reason  of  the  unjust  caption 
or  detention  thereof.    (Laws  1907,  p.  280.) 

1  North  Dakota,  §  6917,  same  as  Minne- 
sota §  4204. 

m  Oklahoma,  §  4351,  substantially  same 
as  Kansas  §  5058. 

n  Oregon,  §  284,  same  as  Alaska  C.  C. 
P.  §  123. 

o  South  Dakota,  C.  C.  P.  §  184,  substan- 
tially same  as  Minnesota  §  4204.  (Re- 
enacted  Feb.  26,  1907,  Sess.  Laws  1907, 
pp.  165,  183.) 

p  Texas,  Art.  4864.  Judges  and  clerks 
of  the  district  and  county  courts,  and 
justices  of  the  peace,  shall,  at  the  com- 
mencement or  during  the  progress  of 
any  civil  suit,  before  final  judgment,  have 
power  to  issue  writs  of  sequestration,  re- 
turnable to  their  respective  courts,  in  the 
following  cases: 

1.  When  a  married  woman  sues  for  di- 
vorce, and  makes  oath  that  she  fears  her 
husband  will  waste  her  separate  prop- 
erty, or  their  common  property,  or  the 
fruits  or  revenue  produced  by  either,  or 
that  he  will  sell  or  otherwise  dispose  of 
the  same  so  as  to  defraud  her  of  her  just 
rights,  or  remove  the  same  out  of  the 
limits  of  the  county  during  the  pendency 
of  the  suit. 

2.  When  a  person  sues  for  the  title 
or  possession  of  any  personal  property  of 
any  description,  and  makes  oath  that  h« 
fears  the  defendant  or  person  in  posses- 
sion thereof  will  injure,  ill-treat,  waste 
or  destroy  such  property,  or  remove  the 


1626  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

same  out  of  the  limits  of  the  county  dur-  of  a  lien  on  real  estate,  and  makes  oath 

ing  the  pendency  of  the  suit.  that  he  fears  the  defendant  or  person  in 

3.  When  a  person  sues  for  the  foreclos-  possession  thereof  will  make  use  of  such 
ure  of  a  mortgage  or  the  enforcement  of  possession  to  injure  such  property,  or 
a  lien  upon  personal  property  of  any  de-  waste  or  convert  to  his  own  use  the  tim- 
scription,  and  makes  oath  that  he  fears  ber,  rents,  fruits  or  revenue  thereof, 
the  defendant  or  person  in  possession  7_  "When  any  person  sues  to  try  the 
thereof  will  injure,  ill-treat,  waste  or  de-  tme  t0  any  real  property,  or  to  remove 
stroy  such  property,  or  remove  the  same  cloud  upon  the  title  to  any  such  real 
out  of  the  county  during  the  pendency  property,  or  to  foreclose  a  lien  upon  any 
of  the  suit.  such  real  property,  or  for  a  partition  of 

4.  When  any  person  sues  for  the  title  reai  property,  and  makes  oath  that  the 
or  possession  of  real  property,  and  makes  defendant,  or  either  of  them  in  the  event 
oath  that  he  fears  the  defendant  or  per-  there  be  more  than  one  defendant,  is  a 
son  in  possession  thereof  will  make  use  non-resident  of   this   state. 

of  his  possession  to  injure  such  property,  q  Washington)  §  707(  substantially  same 

or  waste  or  convert  to  his  own  use  the  ag  Minnesota  §  4204. 

fruits  or  revenue  produced  by  the  same.  .   ,, 

5.  When  any  person  sues  for  the  title  r  Wisconsin,  §  2717,  substantially  same 
or  possession  of  any  property  from  which  as  Minnesota  jj  4Z0i. 

he  has  been  ejected  by  force  or  violence,  a  Wyoming,   §  4145.     The  possession  of 

and  makes  oath  of  such  fact.  specific  personal  property  may  be  recov- 

6.  When  any  person  sues  for  the  fore-  ered  in  an  action  as  provided  in  this 
closure  of  a  mortgage  or  the  enforcement  chapter. 

Affidavit  in  claim  and  delivery. 
California,  §  510.     Where  a  delivery  is  claimed,  an  affidavit  must 
be  made  by  the  plaintiff,  or  by  some  one  in  his  behalf,  showing : 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed  (par- 
ticularly describing  it),  or  is  entitled  to  the  possession  thereof; 

2.  That  the  property  is  wrongfully  detained  by  the  defendant ; 

3.  The  alleged  cause  of  the  detention  thereof,  according  to  his  best 
knowledge,  information,  and  belief; 

4.  That  it  has  not  been  taken  for  a  tax,  assessment,  or  fine,  pur- 
suant to  a  statute ;  or  seized,  under  an  execution  or  an  attachment 
against  the  property  of  the  plaintiff;  or,  if  so  seized,  that  it  is  by 
statute  exempt  from  such  seizure; 

5.  The  actual  value  of  the  property.  (Kerr's  Cyc.  Code  Civ. 
Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §124.  b  Arizona,  Rev.  Stats. 
1901,  fl  3812.  c  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §6854.  a  Colorado, 
Rev.'  Stats.  1908,  C.  C.  P.  §86.  e  Hawaii,  Rev.  Laws  1905,  §2102.  f  Idaho, 
Rev.  Codes  1909,  §  4272.  g  Iowa,  Ann.  Code  1897,  §  4163.  h  Kansas,  Gen.  Stats. 
1905  (Dassler),  §  5059.  «  Minnesota,  Rev.  Laws  1905,  §  4205.  i  Missouri,  Ann. 
Stats.  1906,  §  4463.  k  Montana,  Rev.  Codes  1907,  §  6623.  I  Nebraska,  Comp. 
Stats.  Ann.' 1909,  §6724;  Ann.  Stats.  1909  (Cobbey),  §1153.  Nevada,  Comp. 
Laws  Ann.  1900  (Cutting),  §3195.     m  New  Mexico,  Comp.  Laws  1897,  §2685, 


Ch.  CXXII.] 


CODE  PROVISIONS. 


1627 


sub-sec.  232.  n  North  Dakota,  Rev.  Codes  1905,  §  6918.  o  Oklahoma,  Rev.  and 
Ann.  Stats.  1903  (Wilson),  §4352;  Comp.  Laws  1909  (Snyder),  §5688. 
p  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot.),  §285.  q South  Dakota, 
Rev.  Codes  1903,  C.  C.  P.  §  185.  r  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  4865. 
■  Utah,  Comp.  Laws  1907,  §3046.  t  Washington,  Code  1910  (Rem.  &  Bal.), 
§708.  u  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §2718.  'Wyoming,  Rev. 
Stats.  1899,  §  4146. 


a  Alaska,  C.  C.  P.  §  124,  same  as  Cal.  C. 
C.  r.  §  510,  except  at  the  end  of  sub.  1 
add  "by  virtue  of  a  special  property 
therein,  the  facts  in  respect  to  which 
shall  be  set  forth." 

b  Arizona,  H  3812,  see  note  b  to  Cal.  C. 
C.  P.  §  509. 

c  Arkansas,  §  6854.  An  order  for  the 
delivery  of  property  to  the  plaintiff  shall 
be  made  by  the  clerk  when  there  is  filed 
in  his  office  an  affidavit  of  the  plaintiff, 
or  of  some  one  in  his  behalf,  showing: 

First.  A  particular  description  of  the 
property  claimed. 

Second.  Its  actual  value,  and  the  dam- 
ages which  the  affiant  believes  the 
plaintiff  ought  to  recover  for  the  deten- 
tion thereof. 

Third.  That  the  plaintiff  is  the  owner 
of  the  property,  or  has  a  special  owner- 
ship or  interest  therein,  stating  the  facts 
in  relation  thereto,  and  that  he  is  enti- 
tled to  the  immediate  possession  of  the 
property. 

Fourth.  That  the  property  is  wrong- 
fully detained  by  the  defendant,  with  the 
alleged  cause  of  the  detention  thereof, 
according  to  the  best  knowledge,  infor- 
mation and  belief  of  the  affiant. 

Fifth.  That  it  has  not  been  taken  for 
a  tax  or  fine  against  the  plaintiff,  or  un- 
der any  order  or  judgment  of  a  court 
against  him,  or  seized  under  an  execu- 
tion or  attachment  against  his  property, 
or,  if  so  seized,  that  it  is  by  statute  ex- 
empt from  such  seizure. 

Sixth.  That  the  plaintiff's  cause  of  ac- 
tion has  accrued  within  three  years;  and 
where  the  action  is  brought  to  recover 
property  taken  under  an  execution,  the 
affidavit  must  state  the  fact  of  the  tak- 
ing, and  the  nature  of  the  process  under 
which   it  was  done. 

d  Colorado,  C.  C.  P.  §  86,  substantially 
same  as  Cal.  C.  C.  P.  §  510,  except  omit 
sub.  3  of  Cal.  statute  and  renumber  subs. 
4  and  5  to  subs.  3  and  4  respectively,  and 
at  the  end  of  the  last  subdivision  of  the 
Colorado  statute  add  "which  affidavit 
shall  be  filed  with  the  clerk  of  the  court." 


•  Hawaii,  §  2102,  substantially  same  a3 
Cal.  C.  C.  P.  §  510,  except  omit  sub.  3 
and  renumber  subs.  4  and  5  accordingly. 

f  Idaho,  §  4272,  same  as  Cal.  C.  C.  P. 
§  510,  except  at  end  of  the  opening  pas- 
sage change  "showing"  to  "setting 
forth." 

g  Iowa,  §  4163,  see  note  t  to  Cal.  C.  C. 
P.   §  509. 

h  Kansas,  §  5059.  An  order  for  the  de- 
livery of  property  to  the  plaintiff  shall 
be  made  by  the  clerk  of  the  court  in 
which  the  action  is  brought,  when  there 
is  tiled  in  his  office  an  affidavit  of  the 
plaintiff,  his  agent  or  attorney,  showing: 

First,  A  description  of  the  property 
claimed. 

Second,  That  the  plaintiff  is  the  owner 
of  the  property,  or  has  a  special  owner- 
ship or  interest  therein,  stating  the  facts 
in  relation  thereto,  and  that  he  is  enti- 
tled to  the  immediate  possession  of  the 
property. 

Third,  That  the  property  is  wrongfully 
detained  by  the  defendant. 

Fourth,  That  it  was  not  taken  in  exe- 
cution on  any  order  or  judgment  against 
said  plaintiff,  or  for  the  payment  of  any 
tax,  fine  or  amercement  assessed  against 
him,  or  by  virtue  of  an  order  of  delivery 
issued  under  this  article,  or  any  other 
mesne  or  final  process  issued  against  said 
plaintiff. 

Fifth,  If  taken  in  execution,  or  on  any 
order  or  judgment  against  the  plaintiff, 
that  it  is  exempt  by  law  from  being  so 
taken. 

Sixth,  The  actual  value  of  the  prop- 
erty. When  several  articles  are  claimed, 
the  value  of  each  shall  be  stated  as 
nearly  as  practicable.  (Amended,  Mch. 
12,  1909,  Laws  1909,  p.  329,  C.  C.  P.  §  177.) 

i  Minnesota,  §4205.  An  affidavit  shall 
be  made  by  the  plaintiff  or  some  person 
in  his  behalf,  showing: 

1.  The  particular  property  claimed,  and 
that  plaintiff  is  the  owner  thoreof,  or  is 
lawfully  entitled  to  its  possesvion  by  vir- 
tue of  a  special  property  /herein,  the 
facts  respecting  which  shall  be  set  forth; 


1628 


CLAIM  AND  DELIVERY.— REPLEVIN. 


[Tit.  XV. 


2.  That  the  property  is  wrongfully  de- 
tained by  the  defendant; 

3.  That  the  same  was  not  taken  for  a 
tax,  assessment,  or  fine,  nor  seized  un- 
der an  execution  or  attachment  against 
plaintiff's  property;  or,  if  so  seized,  that 
it  is  by  statute  exempt  from  such  seiz- 
ure; and 

4.  The  actual  value  of  the  property. 

]  Missouri,  §  4463,  see  note  l  to  Cal.  C. 
C.  P.   §  509. 

k  Montana,  §  6623,  substantially  same 
as  Cal.  C.  C.  P.  §  510,  except  at  end  of 
opening  passage  change  "showing"  to 
"stating";  also  omit  sub.  3  of  Cal.  stat- 
ute and  renumber  subs.  4  and  5  accord- 
ingly. 

l  Nebraska,  §  6724.  [Same  as  Kansas 
§  5059,  to  include  sub.  4,  omit  rest  of 
Kansas  and  add:] 

"Provided,  That  such  affidavit  may 
omit  the  first  and  last  clause  of  this  sub- 
division and  in  lieu  thereof,  show  that 
the  property  was  taken  in  execution  on 
a  judgment  or  order,  other  than  an  order 
of  delivery  in  replevin,  and  that  the 
same  is  exempt  from  such  execution  or 
attachment  under  the  laws  of  this  state; 
and  provided  further,  that  the  provisions 
of  this  act  shall  extend  to  and  apply  as 
well  to  proceedings  in  replevin  had  be- 
fore justices  of  the  peace." 

m  New  Mexico,  §  2685,  sub-sec.  232.  Be- 
fore the  writ  of  replevin  shall  be  issued, 
the  plaintiff,  or  some  creditable  person 
in  his  stead,  shall  file  in  the  office  of  the 
clerk  of  the  district  court  an  affidavit  al- 
leging that  the  plaintiff  is  lawfully  enti- 
tled to  the  possession  of  the  property 
mentioned  in  the  complaint,  that  the 
same  was  wrongfully  taken,  or  wrong- 
fully detained  by  the  defendant,  and  that 
the  right  of  action  accrued  within  one 
year.     Laws  1907,  p.  2S1. 

n  North  Dakota,  §  6918,  substantially 
same  as  Alaska  C.  C.  P.  §  124,  except  at 
end  of  opening  passage  change  "show- 
ing"  to  "stating." 

o  Oklahoma,  §  4352,  same  as  Kansas 
S  5059. 

p  Oregon,  §  285,  same  as  Alaska  C.  C. 
P.    §  124. 

q  South  Dakota,  C.  C.  P.  §  185,  same 
as  North  Dakota  §  6918.  (Re-enacted 
Feb.  26,  1907,  Sess.  Laws  1907,  pp.  165, 
1S3.) 

r  Texas,  Art.  4865.  No  sequestration 
shall  issue  in  any  cause  until  the  party 
applying  therefor  shall  file  an  affidavit 
in  writing  stating — 


1.  That  he  is  the  owner  of  the  prop- 
erty sued  for  or  some  interest  therein, 
specifying  such  interest,  and  is  entitled 
to  the  possession  thereof;  or, 

2.  If  the  suit  be  to  foreclose  a  mort- 
gage or  enforce  a  lien  upon  the  property, 
the  fact  of  the  existence  of  such  mort- 
gage or  lien,  and  that  the  same  is  just 
and  unsatisfied,  and  the  amount  of  the 
same  still  unsatisfied,  and  the  date  when 
due. 

3.  The  property  to  be  sequestered  shall 
be  described  with  such  certainty  that  it 
may  be  identified  and  distinguished  from 
property  of  a  like  kind,  giving  the  value 
of  each  article  of  the  property  and  the 
county  in  which  the  same  is  situated. 

4.  It  shall  set  forth  one  or  more  of  the 
causes  named  in  the  preceding  article 
entitling  him  to  the  writ. 

s  Utah,  §  3046.  Where  a  delivery  is 
claimed,  an  affidavit  must  be  made  by 
the  plaintiff,  or  by  some  one  on  his  be- 
half,  showing: 

1.  A  description  of  the  property 
claimed; 

2.  That  the  plaintiff  is  the  owner  of 
the  property  claimed  or  has  a  special 
ownership  or  interest  therein,  stating  the 
facts  in  relation  thereto,  and  that  he  is 
entitled    to    the   possession    thereof; 

3.  That  the  property  is  wrongfully  de- 
tained by  the  defendant; 

4.  The  alleged  cause  of  the  detention 
thereof,  according  to  his  best  knowledge, 
information,  and  belief; 

5.  That  it  has  not  been  taken  for  a 
tax,  assessment,  or  fine,  pursuant  to  a 
statute,  or  seized  under  an  execution  or 
an  attachment  against  the  property  of 
the  plaintiff;  or  if  so  seized,  that  it  is  by 
statute  exempt  from  such  seizure;   and, 

6.  The  actual  value  of  the  property. 

t  Washington,  §  708,  same  as  Alaska 
C.  C.  P.  §  124,  except  omit  sub.  3  and  re- 
number 4  and  5  accordingly. 

u  Wisconsin,  §  2718,  same  as  Alaska  C. 
C.  P.  §  124. 

v  Wyoming,  §  4146.  An  order  for  the 
delivery  of  property  to  the  plaintiff  shall 
be  issued  by  the  clerk  of  the  court  in 
which  the  action  is  brought  when  there 
is  filed  in  the  office  an  affidavit  of  the 
plaintiff,  his  agent  or  attorney,  showing: 

1.  A  description  of  the  property 
claimed. 

2.  That  the  plaintiff  is  the  owner  of 
the  property,  or  has  Epecial  interest 
therein,  and  if  the  ownership  or  Interest 
is  special  or  partial,  the  fact  shall  b# 
stated. 


Ch.  CXXIL]  CODE  PROVISIONS.  1629 

3.  That  the  property  Is  wrongfully  de-  pressly  or  upon  demand  or  selection  by 
tained  by  the  defendant.  the  plaintiff,   and  la  not  held  for  a  tax, 

4.  That  it  was  not  taken  upon  any  or  if  held  for  a  tax,  that  it  is  not  held 
process  issued  against  the  plaintiff,  or  if  for  any  tax  legally  assessed  or  levied 
taken  under  such  process  that  the  prop-  against  the  plaintiff. 

erty    was    exempt    from    execution    ex- 

Judgment  in  replevin. 

California,  §  667.  In  an  action  to  recover  the  possession  of  per- 
sonal property,  judgment  for  the  plaintiff  may  be  for  the  possession 
or  the  value  thereof,  in  case  a  delivery  cannot  be  had,  and  damages 
for  the  detention. 

If  the  property  has  been  delivered  to  the  plaintiff,  and  the  defend- 
ant claim  a  return  thereof,  judgment  for  the  defendant  may  be  for 
a  return  of  the  property  or  the  value  thereof,  in  case  a  return  cannot 
be  had,  and  damages  for  taking  and  withholding  the  same. 

In  an  action  on  a  contract  or  obligation  in  writing,  for  the  direct 
payment  of  money,  made  payable  in  a  specified  kind  of  money  or  cur- 
rency, judgment  for  the  plaintiff,  whether  it  be  by  default  or  after 
verdict,  may  follow  the  contract  or  obligation,  and  be  made  payable 
in  the  kind  of  money  or  currency  specified  therein;  and  in  all  ac- 
tions for  the  recovery  of  money,  if  the  plaintiff  allege  in  his  com- 
plaint that  the  same  was  understood  and  agreed  by  the  respective 
parties  to  be  payable  in  a  specified  kind  of  money  or  currency,  and 
this  fact  is  admitted  by  the  default  of  the  defendant  or  established 
by  evidence,  the  judgment  for  the  plaintiff  must  be  made  payable  in 
the  kind  of  money  or  currency  so  alleged  in  the  complaint;  and  in  an 
action  against  any  person  for  the  recovery  of  money  received  by 
such  person  in  a  fiduciary  capacity,  or  to  the  use  of  another,  judg- 
ment for  the  plaintiff  must  be  made  payable  in  the  kind  of  money 
or  currency  so  received  by  such  person.  (Kerr's  Cyc.  Code  Civ. 
Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  Is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §253.  b  Arizona,  Rev.  Stats. 
1901,  H1I  3821,  3823,  3824.  c  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §6868. 
a  Colorado,  Rev.  Stats.  1908,  C.  C.  P.  §246.  Idaho,  Rev.  Codes  1909,  §4453. 
•  Iowa,  Ann.  Code  1897,  §4176.  f  Kansas,  Gen.  Stats.  1905  (Dassler),  §5067. 
g  Minnesota,  Rev.  Laws  1905,  §4267.  h  Missouri,  Ann.  Stats.  1906,  §§4473- 
4476.  i  Montana,  Rev.  Codes  1907,  §  6803.  i  Nebraska,  Comp.  Stats.  Ann. 
1909,  §§6734-6736;  Ann.  Stats.  1909  (Cobbey),  §§1163-1165.  *  Nevada,  Comp. 
Laws  Ann.  1900  (Cutting),  §  3297.     i  New  Mexico,  Comp.  Laws  1897,  §2685, 


1630 


CLAIM  AND  DELIVERY.— REPLEVIN. 


[Tit.  XV. 


sub-sec.  239.  m  North  Dakota,  Rev.  Codes  1905,  §  7075.  n  Oklahoma,  Rev.  and 
Ann.  Stats.  1903  (Wilson),  §4360;  Comp.  Laws  1909  (Snyder),  §5696. 
o  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot),  §198.  p  South  Dakota, 
Rev.  Codes  1903,  C.  C.  P.  §313.  i  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  1335. 
Utah,  Comp.  Laws  1907,  §3194.  r  Washington,  Code  1910  (Rem.  &  Bal.), 
§434.  s  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §2888.  t  Wyoming,  Rev. 
Stats.  1899,  §§  4155-4158. 


a  Alaska,  C.  C.  P.  §  253,  same  as  first 
two  paragraphs  of  Cal.  C.  C.  P.  §  667. 

bi  Arizona,  fl  3821.  If  the  defendant 
in  his  answer  alleges  that  he  is  the 
owner  of  the  property,  is  entitled  to  its 
possession  and  demands  its  return,  and  if 
on  the  trial  of  the  case  it  shall  be  found 
that  he  is  its  owner,  that  he  was  at  the 
time  the  suit  was  brought  entitled  to  its 
possession,  then  in  such  trial  the  value 
of  the  property  replevied  shall  be  found 
by  the  jury,  if  tried  by  a  jury,  and  by  the 
court,  if  tried  by  the  court,  together  with 
any  damage  the  defendant  may  have  suf- 
fered for  the  wrongful  replevying  of  the 
property,  then  the  judgment  shall  be 
against  the  plaintiff  and  the  sureties  on 
the  replevin  bond  for  the  assessed  value 
of  the  property,  the  assessed  damages, 
and  for  the  costs  of  the  suit;  and  if  it 
shall  appear  in  the  trial  of  the  case  that 
plaintiff  is  in  the  possession  of  the  prop- 
erty, or  that  it  is  under  his  control,  then 
the  judgment  shall  also  be  for  its  return 
to  the  defendant  at  a  time  and  place  to 
be  specified  in  the  judgment. 

b2  Arizona,  fl  3823.  If,  at  the  time  of 
the  trial  of  the  case,  the  plaintiff  shall 
not  be  in  the  possession  of  the  property, 
or  the  same  shall  not  be  under  his  con- 
trol, then  the  above  alternative  judgment 
shall  not  be  given,  but  only  the  judg- 
ment for  the  value  of  the  property,  the 
damages  suffered  by  its  replevin  and  the 
costs  of  the  suit.  In  every  such  case  the 
judgment  shall  be  against  the  plaintiff 
and  the  sureties  on  his  replevin  bond. 

b3  Arizona,  fl  3824.  If  the  judgment 
shall  be  against  the  defendant,  and  at 
the  time  thereof  he  be  in  the  possession 
of  the  property  by  reason  of  a  forthcom- 
ing bond  given  by  him  whereby  he  re- 
tained the  possession  of  the  property,  the 
judgment  shall  be  against  the  defendant 
and  the  sureties  on  his  bond  for  the  as- 
sessed value  of  the  property,  the  as- 
sessed damages  for  its  detention  and  the 
costs  of  suit;  and  also  for  the  return  of 
the  property  to  the  plaintiff,  at  a  time 
and  place  to  be  therein  named,  and  upon 
the  same  terms  and  conditions  the  plaint- 


iff shall  be  given  the  same  election  as  is 
provided  above  shall  be  given  to  the  de- 
fendant. 

c  Arkansas,  §  6868,  same  as  Alaska  C. 
C.  P.   §  253. 

d  Colorado,  C.  C.  P.  §  246,  same  as 
Alaska  C.  C.  P.  §  253. 

e  Iowa,  §  4176.  The  judgment  shall  de- 
termine which  party  is  entitled  to  the 
possession  of  the  property,  and  shall  des- 
ignate his  rights  therein,  and  if  such 
party  have  not  the  possession  Lhereof, 
shall  also  determine  the  value  of  the 
right  of  such  party,  which  right  shall  be 
absolute  as  to  an  adverse  party,  and 
shall  also  award  such  damages  to  either 
party  as  he  may  be  entitled  to  for  the 
illegal  detention  thereof.  If  the  judg- 
ment be  against  the  plaintiff  for  the 
money  value  of  the  property,  it  shall  also 
be  against  the  sureties  on  his  bond. 

t  Kansas,  §  5067,  substantially  same  as 
first  two  paragraphs  of  Cal.  C.  C.  P.  §  667, 
except  in  line  3,  after  "possession"  in- 
sert "or  for  the  recovery  of  the  posses- 
sion," before  "or  the  value  thereof." 
(Amended  Mch.  12,  1909,  Laws  1909,  p. 
329,    C.   C.    P.    §  185.) 

g  Minnesota,  §  4267.  In  an  action  to 
recover  the  possession  of  personal  prop- 
erty, judgment  may  be  rendered  for  the 
plaintiff  and  for  the  defendant,  or  for 
either.  Judgment  for  either,  if  the  prop- 
erty has  not  been  delivered  to  him,  and 
a  return  is  claimed  in  the  complaint  or 
answer,  may  be  for  the  possession,  or  for 
the  value  thereof  in  case  possession  can 
not  be  ootained,  and  damages  for  the  de- 
tention, or  the  taking  and  withholding 
thereof.  When  the  prevailing  party  is 
in  possession  of  the  property,  the  value 
thereof  shall  not  be  included  in  the  judg- 
ment. If  the  property  has  been  delivered 
to  the  plaintiff,  and  the  action  be  dis- 
missed before  answer,  or  if  the  answer 
so  claim,  the  defendant  shall  have  judg- 
ment for  a  return,  and  damages,  if  any, 
for  the  detention,  or  the  taking  and 
withholding,  of  such  property;  but  such 
judgment  shall  not  be  a  bar  to  another 


Ch.  CXXII.] 


CODE  PROVISIONS. 


16J1 


action  for  the  same  property  or  any  part 
thereof. 

hi  Missouri,  §  4473.  If  the  plaintiff  fail 
to  prosecute  his  action  with  effect  and 
without  delay,  and  shall  have  the  prop- 
erty in  his  possession,  and  the  defend- 
ant in  his  answer  claims  the  same  and 
demands  a  return  thereof,  the  court  or  a 
Jury  may  assess  the  value  of  the  prop- 
erty taken,  and  the  damages  for  taking 
and  detaining  the  same,  for  the  time 
such  property  was  taken  or  detained 
from  defendant  until  the  day  of  the  trial 
of  the  cause. 

h2  Missouri,  §  4474.  In  such  case,  the 
judgment  shall  be  against  the  plaintiff 
and  his  sureties,  that  he  return  the  prop- 
erty taken,  or  pay  the  value  so  assessed, 
at  the  election  of  the  defendant,  and 
also,  pay  the  damages  assessed  for  the 
taking  and  detention  of  the  property  and 
costs  of  suit. 

h3  Missouri,  §  4475.  If  the  plaintiff 
have  not  the  property  in  possession, 
damages  shall  be  assessed  as  directed  in 
section  4473  of  this  chapter,  for  the  tak- 
ing or  detention,  or  both,  as  the  case 
may  be,  of  the  property;  and  judgment 
shall  be  rendered  against  the  plaintiff 
and  his  sureties  for  the  damages,  if  any, 
and  for  costs  of  suit. 

h4  Missouri,  §  4476.  If  the  defendant 
fail  in  his  defense,  and  have  the  prop- 
erty in  possession,  the  court  or  jury  shall 
assess  the  value  of  the  property,  and  the 
damages  for  all  injuries  to  the  property, 
and  for  the  taking  and  detention,  or  de- 
tention, of  the  same;  and  the  judgment 
shall  be  against  the  defendant  and  his 
sureties,  that  he  return  the  property  or 
pay  the  value  so  assessed,  at  the  election 
of  the  plaintiff,  and,  also,  pay  the  dam- 
ages so  assessed  and  costs  of  suit.  If  the 
defendant  have  not  the  property  in  pos- 
session, the  court  or  jury  shall  assess  the 
damages,  and  the  judgment  shall  be 
against  the  defendant  and  his  sureties 
for  the  damages  so  assessed  and  costs 
of  suit;  and,  in  all  cases,  the  property 
6hall  be  presumed  to  be  with  the  party 
who  should  have  it,  until  the  contrary  be 
shown. 

I  Montana,  §  6S03,  same  as  Alaska  C.  C. 
P.  |  253. 

Ji  Nebraska,  §  6734.  The  judgment  in 
the  cases  mentioned  in  sections  one  hun- 
dred and  ninety,  and  one  hundred  and 
ninety-one,  and  in  section  one  thousand 
and  forty-one  of  said  code,  shall  be  for  a 
return    of    the    property    or    the    value 


thereof  in  case  a  return  cannot  be  had, 
or  the  value  of  the  possession  of  the 
same,  and  for  damages  for  withholding 
said  property,  and  costs  of  suit. 

J2  Nebraska,  §  6735.  In  all  cases,  when 
the  property  has  been  delivered  to  the 
plaintiff,  where  the  jury  shall  find  for  the 
plaintiff,  on  an  issue  joined,  or  on  in- 
quiry of  damages  upon  a  judgment  by 
default,  they  shall  assess  adequate  dam- 
ages to  the  plaintiff  for  the  illegal  deten- 
tion of  the  property;  for  which,  with 
costs  of  suit,  the  court  shall  render  judg- 
ment for  defendant  [plaintiff]. 

J3  Nebraska,  §  6736.  When  the  prop- 
erty claimed  has  not  been  taken,  or  has 
been  returned  to  the  defendant  by  the 
sheriff  for  want  of  undertaking  required 
by  section  one  hundred  and  eighty-six, 
the  action  may  proceed  as  one  for  dam- 
ages only,  and  the  plaintiff  shall  be  en- 
titled to  such  damages  as  are  right  and 
proper;  but  if  the  property  be  returned 
for  want  of  the  undertaking  required  by 
section  one  hundred  and  eighty-six,  the 
plaintiff  shall  pay  all  costs  made  by  tak- 
ing the  same. 

k  Nevada,  §  3297,  substantially  same  as 
Cal.  C.  C.  P.  §  667,  except  in  third  para- 
graph, omit  entirely  the  second  clause 
or  sentence  commencing  "and  in  all  ac- 
tions for  the  recovery  of  money,"  down 
to  and  including  the  words  "so  alleged  in 
the  complaint";  also  add  at  the  end  of 
the  section  the  words  "and  in  all  cases 
of  damage  the  judgment  shall  be  for  gold 
coin." 

1  New  Mexico,  §  2685,  sub-sec.  239.  In 
case  the  plaintiff  fails  to  prosecute  his 
suit  with  effect  and  without  delay  judg- 
ment shall  be  given  for  the  defendant 
and  shall  be  entered  against  the  plaintiff 
and  his  securities  for  the  value  of  the 
property  taken,  and  double  damages  for 
the  use  of  the  same  from  the  time  of  de- 
livery, and  it  shall  be  in  the  option  of 
the  defendant  to  take  back  such  property 
or  the  assessed  value  thereof.  (Laws 
1907,  p.  282.) 

m  North  Dakota,  g  7075,  substantially 
same  as  first  two  paragraphs  of  Cal.  C. 
C.  P.  §  667,  except  after  the  word  "pos- 
session" in  the  second  line  insert,  "or  for 
the  recovery  of  possession." 

n  Oklahoma,  §  4360,  substantially  same 
as  North   Dakota   s  7075. 

o  Oregon,  §  19S,  substantially  same  as 
Alaska  C.  C.  P.  §  2j3 

p  South  Dakota,  C.  C.  P.  §  313,  sub- 
stantially  same  as  North  Dakota   i  7075. 


1632 


CLAIM  AND  DELIVERY.— REPLEVIN. 


[Tit.  XV. 


q  Texas,  Art.  1335.  The  judgment  of 
the  court  shall  conform  to  the  pleadings, 
the  nature  of  the  case  proved  and  the 
verdict,  if  any,  and  shall  be  so  framed 
as  to  give  the  party  all  relief  to  which  he 
may  be  entitled  either  in  law  or  equity. 

r  Washington,  §  434,  substantially  same 
as  Alaska  C.  C.  P.  §  253. 

s  Wisconsin,  §  28S8.  In  any  action  of 
replevin  judgment  for  the  plaintiff  may 
be  for  the  possession  or  for  the  recovery 
of  possession  of  the  property,  or  the 
value  thereof  in  case  a  delivery  cannot 
be  had,  and  of  damages  for  the  deten- 
tion; and  when  the  property  shall  have 
been  delivered  to  the  deiendant,  under 
section  2722,  judgment  may  be  as  afore- 
said or  absolutely  for  the  value  thereof, 
and  damages  for  the  detention  at  the 
plaintiff's  option.  If  the  property  have 
been  delivered  to  the  plaintiff  and  a  de- 
fendant claim  a  return  thereof  judgment 
for  the  defendant  may  be  for  a  return  of 
the  property  or  the  value  thereof,  in  case 
a  return  cannot  be  had,  and  damages 
for  taking  and  withholding   the  same. 

ti  Wyoming,  §  4155.  When  judgment 
is  rendered  against  the  plaintiff  on  de- 
murrer, or  he  fails  to  prosecute  his  ac- 
tion to  final  judgment,  the  court  shall,  on 
application  of  the  defendant,  assess  to 
defendant  proper  damages,  including 
damages  for  the  right  of  property  or 
possession,  or  both,  if  he  prove  himself 
entitled  thereto,  or  cause  the  same  to 
be  done  by  a  jury,  for  which,  with  costs 
of  suit,  the  court  shall  render  judgment 
for   the  defendant. 

t2  Wyoming,    §  4156.     When    the   prop- 


erty is  delivered  to  the  plaintiff,  or  re- 
mains in  the  hands  of  the  sheriff,  as 
provided  in  section  four  thousand  one 
hundred  and  fifty-one,  if  the  jury,  upon 
issue  joined,  find  for  the  plaintiff,  and 
upon  inquiry  of  damages  upon  a  default, 
they  shall  assess  adequate  damages  to 
the  plaintiff  for  the  illegal  detention  of 
the  property,  for  which,  with  costs  of 
suit,  the  court  shall  render  judgment  for 
the  plaintiff. 

t3  Wyoming,  §  4157.  When  the  prop- 
erty is  delivered  to  the  plaintiff,  or  re- 
mains in  the  hands  of  the  sheriff,  as 
provided  in  section  four  thousand  one 
hundred  and  fifty-one,  if  the  jury  upon 
issue  joined,  find  for  the  defendant,  they 
shall  also  find  whether  the  defendant 
had  the  right  of  property  or  the  right 
of  possession  only,  at  the  commence- 
ment of  the  suit;  and  if  they  find  either 
in  his  favor,  they  shall  assess  to  him 
such  damages  as  they  think  right  and 
proper,  for  which,  with  costs  of  suit,  the 
court  shall  render  judgment  for  the  de- 
fendant against  the  plaintiff  and  his 
sureties. 

t4  Wyoming,  §  4158.  When  the  prop- 
erty claimed  is  not  taken,  or  is  re- 
turned to  the  defendant  by  the  sheriff 
for  the  want  of  the  undertaking  re- 
quired by  section  four  thousand  one  hun- 
dred and  fifty,  the  action  may  proceed 
as  one  for  damages  only,  and  the  plaint- 
iff shall  be  entitled  to  such  damages 
as  are  right  and  proper,  but  if  the  prop- 
erty be  returned  for  want  of  the  under- 
taking, the  plaintiff  shall  pay  all  costs 
made   by   taking   the   same. 


Compelling  delivery  of  specific  personal  property. 

California,  §  3380.  Any  person  having  the  possession  or  control  of 
a  particular  article  of  personal  property,  of  which  he  is  not  the 
owner,  may  be  compelled  specifically  to  deliver  it  to  the  person 
entitled  to  its  immediate  possession.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6095.     North  Dakota,  Rev.  Codes  1905,  §  6608. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2338. 


Ch.  CXXIL]         AFFIDAVITS,  UNDERTAKINGS,  ETC.— FORMS.  IGLlij 

§419.     AFFIDAVITS,  UNDERTAKINGS,  ETC. 
FORM   No.  985 — Affidavit  for  claim  and  delivery. 

[Title  of  court  and  cause.] 

[Venue.] 

,  being  duly  sworn,  deposes  and  says:  That  he  is  the 
plaintiff  in  this  action;  that  he  is  the  owner  of  and  entitled  to  the 
possession  of  the  following-described  goods  and  chattels,  namely : 
[Here  describe  the  same],  and  which  goods  and  chattels  are  of  the 
actual  value  of  $  ;  that  said  goods  and  chattels  are  wrong- 

fully detained  by  the  defendant  from  the  plaintiff;  that  the  alleged 
cause  of  said  detention  thereof,  according  to  affiant's  best  knowl- 
edge, information,  and  belief,  is  [here  state  the  alleged  cause  of 
detention]  ;  that  said  property  has  not  been  taken  for  any  tax, 
assessment,  or  fine,  pursuant  to  any  statute,  or  seized  under  an 
execution  or  an  attachment  against  the  property  of  the  plaintiff. 
[Or,  if  seized,  and  said  property  is  exempt  by  statute,  so  state.] 

[Signature.] 

[Jurat] 

FORM   No.  986 — Demand  directed  to  the  sheriff  to  take  property. 

To  the  sheriff  of  the  county  of  : 

I  hereby  demand  that  you  take  from  the  defendant  herein  the 
personal  property  mentioned  and  described  in  the  foregoing  affi- 
davit. A.  B.,  Attorney  for  plaintiff. 

[Date.] 

FORM   No.  987 — Undertaking   for  the    return   to   the   defendant   of   property 
taken   in  claim  and  delivery. 

[Title  of  court  and  cause.] 

The  property  which  is  described  in  the  affidavit  of  the  plaintiff  in 

this  action  as   [describe  the  property  as  in  such  affidavit],  having 

been  taken  from  said  defendant       by  the  sheriff  of  the  count}'  of 

,   in   this  state,   and  said   defendant  having   demanded   and 

required  the  return  of  said  property  to  him: 

Now,  therefore,  in  consideration  of  the  premises,  and  to  procure 

the  return  of  said  property  to  said  defendant,  we,  the  undersigned, 

and  ,  undertake  to  the  effect  that  we  are  bound 

to  ,  the  plaintiff  in  the  action,  in  the  sum  of  $  ,  being 

double  the  actual  value  of  the  property  as  stated  in  the  affidavit  of 


1G34  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

plaintiff,    and    we    promise    plaintiff  that  if  delivery    thereof    be 
adjudged,  the  defendant  will  deliver  said  property  to  said  plaintiff, 
and  will  pay  to  plaintiff  such  sum,  damages  or  charges,  as  may  for 
any  cause  be  recovered  against  the  defendant  in  said  action. 
[Date.]  [Signatures.] 

FORM   No.  988— Approval  of  undertaking  by  sheriff. 

I  hereby  approve  the  within  undertaking,  both  as  to  the  suffi- 
ciency of  the  amount  and  as  to  the  sureties  who  executed  the  same. 

[Date.]  [Sheriff's  signature.] 

FORM   No.  989 — Claim  of  property  by  third  person,  and  demand  for  return 
thereof. 

[Title  of  court  and  cause.] 

[Venue.] 

,  being  duly  sworn,  says:  That  he  is  the  owner  [or  he 
has  the  right  to  the  possession]  of  the  following-described  property, 
to  wit :  [Here  describe]  ;  that  said  property  has  been  taken  posses- 
sion of  by  you  as  sheriff,  under  a  writ  of  attachment  as  such  in  the 
above-entitled  action;  that  said  ownership  [or  right  of  possession] 
is  founded  on  the  grounds,  to  wit,  that  [here  state  the  grounds  of 
said  ownership,  or  right  of  possession]  ;  that  affiant  claims  said 
property  on  said  grounds,  and  demands  the  immediate  return  of  the 
same  and  all  thereof. 

[Jurat.]  [Signature.] 

FORM   No.  990 — Undertaking  on  behalf  of  plaintiff,  given  on  claim  made  by 
third  person  to  property  attached. 

[Title  of  court  and  cause.] 

The  plaintiff  in  this  action  having  claimed  possession  of  the  fol- 
lowing property:  [Here  describe  the  same]  ;  and  the  plaintiff,  by 
proceedings  in  this  action,  having  caused  ,  the  sheriff  of  the 

county  of  ,  in  this  state,  to  take  the  said  property  from  the 

possession  of  the  defendant;  and  one  having  presented  and 

served  his  verified  claim,  wherein  said  claimant  sets  forth  his  alleged 
title  to  said  property  and  the  grounds  thereof,  and  claims  the  right 
of  possession  of  such  property  thereunder,  and  said  claimant,  having 
demanded  that  he  be  indemnified  against  said  claim  of  said  : 


Cli.  CXXIL]  VERDICTS,    JUDGMENTS,    ETC.— FORMS.  1635 

Now,  therefore,  we,  and  ,  in  consideration  of 

the  premises,  and  to  indemnify  ,  said  sheriff,  from  any  and 

all  loss  by  reason  of  said  claim,  do  hereby  undertake  in  the  sum  of 
$  ,  and  promise  ,  said  sheriff,  that  ,  the  plaintiff 

in  said  action,  will  indemnify  ,  said  sheriff,  against  said 

claim,  and  against  all  loss  and  damage  he  may  sustain  by  reason 
thereof ;  and  if  said  plaintiff  fail  to  do  so,  we  will  pay  to  said 
all  loss  and  damage  he  may  sustain  by  reason  of  such  claim,  not 
exceeding  said  sum  of  $ 

[Date.]  [Signatures.] 


FORM   No.  991 — Undertaking  to  indemnify  sheriff. 

[Title  of  court  and  cause.] 

,  as  the  sheriff  of  the  county  of  ,  in  this  state,  being 

about  to  attach  the  property  of  the  defendant  in  this  action  by  virtue 
of  a  writ  of  attachment  issued  therein : 

Now,  therefore,  in  consideration  of  the  premises,  and  for  the  pur- 
pose of  giving  security  and  to  prevent  the  levy  of  such  attachment, 
we,  and  ,  hereby  undertake  and  promise  the  plaintiff 

in  this  action,  and  are  bound  to  him  in  the  sum  of  $  ,  being 

an  amount  sufficient  to  satisfy  plaintiff's  demands,  besides  costs,  or 
an  amount  equal  to  the  value  of  the  property  about  to  be  attached, 
that  the  defendant  will  satisfy  any  judgment  which  the  plaintiff 
may  recover  against  him  in  this  action. 

[Date.]  [Signatures.] 

§420.     VERDICTS,  JUDGMENTS,  AND   EXECUTIONS. 
FORM   No.  992 — Verdict  for  the  plaintiff.     (In  general.) 

[Title  of  court  and  cause.] 

We,  the  jury  in  the  above-entitled  action,  find  for  the  plaintiff: 
That  he  is  the  owner,  and  entitled  to  the  immediate  possession,  of  the 
property  described  in  the  complaint  [or  petition]  herein,  and  we 
assess  the  value  of  said  property  at  $  ,  and  the  plaintiff's  dam- 

age, by  reason  of  the  detention  and  withholding  thereof,  at  the  sum 
of  $ 

[Date.]  X.  Y.,  Foreman. 


KJ36  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

FORM   No.  993 — Verdict  as  to  special  interest  and  damages. 

[Title  of  court  and  cause.] 

We,  the  jury  in  the  above-entitled  action,  find  for  the  plaintiff: 
That  he  is  the  owner  of  a  special  interest  in  the  property  described 
in  the  complaint  [or  petition]  herein,  to  wit,  [here  state]  ;  that  the 
value  of  said  entire  property  is  $  ,  and  that  the  value  of  said 

special  interest  of  plaintiff  therein  is  $  ;  that  the  plaintiff  is 

entitled  to  the  immediate  possession  of  said  property,  by  virtue  of  his 
said  special  interest  therein,  and  that,  subject  to  such  special  inter- 
est, defendant  is  the  general  owner  of  said  property.  We  further- 
more find  and  assess  the  plaintiff's  damages,  by  reason  of  the  taking 
and  withholding  of  said  property,  at  the  sum  of  $ 

[Date.]  X.  Y.,  Foreman. 

FORM   No.  994 — Alternative  judgment  for  plaintiff  in  replevin. 

[Title  of  court  and  cause.] 

This  action  having  been  tried  before  the  court  and  a  jury  [or 
without  a  jury,  trial  by  jury  having  been  expressly  waived],  and  the 
court  [or  the  jury]  having  found  for  the  plaintiff,  that  he  is  the 
owner,  and  entitled  to  the  immediate  possession,  of  the  property 
described  in  the  complaint  [or  petition]  herein,  and  the  court  [or 
jury]  having  assessed  the  value  of  said  property  at  the  sum  of  $  , 

and  it  appearing  from  the  return  of  the  sheriff  herein  and  from  the 
undertaking  filed  herein  on  the  part  of  the  defendant  that  said  prop- 
erty was  delivered  to  the  defendant,  and  that  and  are 
defendant's  sureties  who  signed  said  undertaking  in  the  sum  of 
$  ,  pursuant  to  the  statute,  said  sureties  being  bound  as  therein 
required  for  the  delivery  of  said  property  to  the  plaintiff,  if  such 
delivery  be  adjudged,  and  for  the  payment  of  such  sum  to  the  plaint- 
iff as  might  for  any  cause  be  recovered  against  the  defendant ; 

[And  the  plaintiff  having  in  open  court  elected  to  take  judgment 
for  the  recovery  of  the  possession  of  said  property,  or  the  value 
thereof  in  case  a  delivery  can  not  be  had]  :  Now,  on  motion  of  A.  B., 
attorney  for  the  plaintiff, — 

It  is  ordered  and  adjudged,  that  C.  D.,  the  plaintiff,  do  have  and 
recover  of  E.  F.,  the  defendant,  and  and  ,  said  sureties, 

the  possession  of  the  property  described  in  the  complaint  [or  peti- 
tion], as  follows:  [Here  describe  said  property],  together  with 
$  ,  plaintiff's  damages,  assessed  as  aforesaid,  for  such  deten- 


Ch.  CXXII.]         JUDGMENTS,  EXECUTIONS,  ETC.— FORMS.  1637 

tion;  and  in  case  a  delivery  of  said  property  can  not  be  had,  then 
that  plaintiff  do  have  and  recover  of  defendant  and  his  said  sureties 
the  sum  of  $  ,  the  value  of  said  property,  in  addition  to  his 

said  damages,  together  with  the  sum  of  $  ,  taxed  as  costs  of 

this  action. 

[Date.]  By  the  court. 

M.  N.,  Clerk. 

FORM   No.  995 — Judgment  for  plaintiff  fn  replevin.     (In  general.) 

[Title  of  court  and  cause.] 

[After  preliminary  recitals  as  in  the  preceding  form:] 

It  is  ordered  and  adjudged,  that  C.  D.,  plaintiff,  do  have  and 
recover  of  E.  F.,  defendant,  and  and  ,  his  said  sureties 

upon  said  undertaking,  the  sum  of  $  ,  the  value  of  said  prop- 

erty, and  the  further  sum  of  $  ,  as  plaintiff's  damages,  assessed 

as  aforesaid,  for  the  detention  thereof,  together  with  the  further 
sum  of  $  ,  taxed  and  allowed  as  costs  herein,  making  in  all  the 

sum  of  $ 

[Date.]  By  the  court. 

M.  N.,  Clerk. 

FORM   No.  996 — Execution  in  replevin. 

The  people  of  the  state  of  ,  to  the  sheriff  [or  other  officer, 

designating  his  official  capacity]  of  the  county  of  : 

Whereas,  a  judgment  was  rendered  on  the  day  of 

19     ,  in  the  court,  in  an  action  in  said  court  wherein 

was  plaintiff  and  was  defendant,  in  favor  of  the  defendant 

and  against  the  plaintiff,  for  the  sum  of  $  ,  damages  and  costs 

and  for  the  further  sum  of  $  ;  and  if  the  latter  sum  is  not 

collected,  for  the  delivery  by  the  plaintiff  to  the  defendant  of  the 
following-described  personal  property,  to  wit:  [Particularly  de- 
scribe the  same;  or  state  as  follows:  "And  that  he  is  entitled  to 
the  possession  of  the  following-described  personal  property,  to  wit: 
(Particularly  describing  the  same),  until  the  said  sum  of  $  is 

collected  and  paid"]  ;  and 

Whereas,  the  judgment-roll  upon  said  judgment  was  filed  in  the 
clerk's  office  of  the  county  of  on  the  day  last  aforesaid,  [and 

a  transcript  of  said  judgment  was  duly  filed,]   and  said  judgment 

Jury's  PI.— 104. 


1638  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

was  duly  docketed  in  the  office  of  the  clerk  of  your  county  on  the 
day  of  ,  19      ;  and 

Whereas,  there  is  now  actually  due  upon  said  judgment  the  sum 
of  $  ,  damages  and  costs,  as  aforesaid,  with  interest  thereon 

from  the  day  of  ,  19     ,  and  the  further  sum  of  $  „ 

with  interest  thereon  from  the  day  of  ,  19     : 

Now,  therefore,  you  are  hereby  required  to  deliver  possession  of 
the  said  personal  property  to  the  defendant,  unless  the  plaintiff, 
before  the  delivery,  pays  to  you  the  said  sum  of  $  ,  with 

interest  as  aforesaid,  and  your  fees;  and  in  case  the  said  personal 
property  can  not  be  found  within  your  county,  then  to  satisfy  that 
sum  out  of  any  personal  property  belonging  to  the  plaintiff;  and  if 
sufficient  personal  property  belonging  to  the  plaintiff  can  not  be 
found,  then  out  of  the  real  property  belonging  to  him  at  the  time 
when  said  judgment  was  docketed  in  the  clerk's  office  of  the  county 
of  ,  or  at  any  time  thereafter. 

And  you  are  further  required  to  satisfy  the  said  sum  of  $  , 

damages  and  costs  as  aforesaid,  out  of  the  personal  property  of  the 
said  judgment  debtors,  or  either  of  them;  and  if  sufficient  personal 
property  can  not  be  found,  out  of  the  real  property  belonging  to 
them  [or  either  of  them]  at  the  time  when  said  judgment  was  dock- 
eted in  the  clerk's  office  of  the  county  of  ,  or  at  any  time 
thereafter;  and  to  return  this  execution  to  the  clerk  of  the  county 
of            within  [sixty]  days  after  the  receipt  hereof. 

"Witness  [etc.]. 


§421.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  997 — For  claim  and  delivery  of  personal  property. 

[Title  of  court  and  cause.] 

,  the  plaintiff  in  the  above-entitled  action,  complaining  of 
the  defendant  in  said  action,  alleges: 

1.  That  on  the  day  of  ,19  ,  at  the  county  of  , 
plaintiff  was  the  owner  and  in  the  possession  of  the  following  goods 
and  chattels,  of  the  value  of  $  ,  to  wit:  [Here  describe  said 
goods  and  chattels  with  sufficient  certainty  to  enable  the  officer 
levying  thereon  to  accurately  identify  the  same.] 

2.  That  the  defendant,  on  the  day  of  ,  19  ,  at  the 
county  of             .  without  the  consent  of  said             ,  plaintiff,  wrong- 


Ch.  CXXIL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1639 

fully  took  said   goods  and  chattels  from    the    possession    of    the 
plaintiff. 

3.  That  before  the  commencement  of  this  action,  to  wit,  on  the 

day  of  ,  19     ,  the  plaintiff  demanded  of  the  defendant 

possession  of  said  goods  and  chattels;  but  to  deliver  the  possession 
thereof  the  defendant  refused. 

4.  That  defendant  still  unlawfully  withholds  and  detains  said 
goods  and  chattels  from  the  possession  of  the  plaintiff,  to  his  damage 
in  the  sum  of  $ 

Wherefore,  the  plaintiff  demands  judgment  against  the  defendant 

for  the  recovery  of  the  possession  of  said  goods  and  chattels,  or  for 

the  sum  of  $  ,  the  value  thereof,  in  case  a  delivery  can  not  be 

had,  together  with  $  damages  and  costs  of  suit. 

,.„.„,.,  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  998 — Goods  taken  from  possession  of  plaintiff's  assignor. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  at  the  time  first  hereinafter  mentioned,  one  C.  D.  owned 
and  was  lawfully  in  the  possession  of  [describe  property],  of  the 
value  of  $  ,  and  that  on  the  day  of  ,  19  ,  the 
defendant  wrongfully  took  said  goods  from  the  possession  of  the 
said  C.  D.,  and  has  ever  since  detained  the  same. 

2.  That  on  the  day  of  ,  19  ,  the  said  C.  D.  assigned 
and  set  over  to  the  plaintiff  the  said  goods,  and  also  his  claim  for 
damages  for  said  taking  and  detention,  and  by  reason  of  the  prem- 
ises the  plaintiff  has  sustained  damage  in  the  sum  of  $ 

[Concluding  part.] 

FORM   No.  999 — To  recover  property  severed  from  realty. 

(In  Houghton  Co.  v.  Kennedy,  8  Cal.  App.  777;  97  Pac.  905.) 
[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendants,  and  for  cause  of  action  alleges: 
1,  2.    [Averments  as  to  incorporation  of  plaintiff  company,  and  as 

to  certain  of  defendants  sued  under  fictitious  names.] 

3.  That  on  the  25th  day  of  August,  1905,  and  for  more  than  three 
months  prior  thereto,  at  and  in  the  county  of  Fresno,  state  of  Cali- 
fornia, plaintiff  was,  ever  since  has  been,  and  now  is  the  owner  and 
entitled  to  the  possession   of  the  following-described   property,  to 


1640  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

wit:  One  steam-engine  and  one  bunkhouse,  15  by  20  feet  in  size,  a 
little  more  or  less,  all  on  said  date  situated  upon  block  8  in  the 
town  of  Rolinda,  said  personal  property  being,  prior  to  the  severance 
herein  complained  of,  appurtenant  to  said  lands  and  a  part  and 
parcel  thereof. 

4.  That  said  steam-engine  is,  and  then  was,  of  the  value  of  $600, 
and  said  bunkhouse  is,  and  then  was,  of  the  value  of  $100. 

5.  That  the  defendants  herein,  on  or  about  the  25th  day  of 
August,  1905,  at  and  in  said  county,  without  plaintiff's  consent,  and 
wrongfully  and  unlawfully,  entered  upon  the  premises  above 
described,  so  belonging  to  plaintiff,  and  forcibly  and  wrongfully 
broke  into  the  building  in  which  said  steam-engine  was  located,  and 
removed  said  steam-engine  from  said  premises,  and  at  the  same 
time  did  wrongfully  and  unlawfully  enter  upon  said  premises  and 
seize  and  take  said  bunkhouse  and  remove  the  same  therefrom. 

6.  That  the  defendants  ever  since  said  date  have  wrongfully  and 
unlawfully  withheld  and  detained,  and  now  wrongfully  withhold 
and  detain,  said  property  from  the  possession  of  plaintiff,  to  its 
damage  in  the  sum  of  $300. 

7.  That  the  said  property  has  not  been  taken  for  any  tax,  assess- 
ment, or  fine  pursuant  to  any  statute,  or  seized  under  an  execution 
or  an  attachment  against  the  property  of  the  plaintiff. 

Wherefore,  plaintiff  prays  judgment  against  the  defendants  for 
the  recovery  of  the  possession  of  said  personal  property,  or  for  the 
sum  of  $700,  the  value  thereof  in  case  a  delivery  can  not  be  had, 
together  with  $300  damages,  and  for  its  costs  of  suit;  further,  that 
said  property  be  taken  from  said  defendants  by  the  sheriff  of  said 
county  in  claim  and  delivery,  and  held  in  accordance  with  the  law 
in  such  cases  made  and  provided,  and  that  it  may  have  such  other 
and  further  relief  as  to  the  court  may  seem  proper  in  the  premises. 

F.  E.  Cook, 

[Verification.]  Attorney  for  plaintiff. 

FORM   No.  1000 — By  married  woman,  to  recover  possession  of  separate  per- 
sonal property  or  the  value  thereof. 

(In  Richey  v.  Haley,  138  Cal.  441;  71  Pac.  499.) 
[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  for  cause  of  action 
alleges : 


Ch  CXXIL]  ANSWERS.— FORMS.  1G41 

1.  That  plaintiff  is  a  married  woman,  and  the  wife  of  Charles  S. 
Richey,  and  that  the  property  herein  sued  for  and  hereinafter 
described  is  the  sole  and  separate  property  of  the  plaintiff. 

2.  That  on  the  12th  day  of  November,  1897,  in  the  county  of 
Santa  Clara,  plaintiff  was  the  owner  and  in  the  actual  possession  of 
the  following  goods  and  chattels,  to  wit:  [Here  follows  a  descrip- 
tion of  said  property]  ;  that  said  goods  and  chattels  were  at  said 
time,  and  ever  since  have  been,  of  the  value  of  $420. 

3.  That  the  defendant,  on  the  12th  day  of  November,  1897,  in  the 
said  county  of  Santa  Clara,  without  the  consent  of  plaintiff,  wrong- 
fully took  said  goods  and  chattels  from  the  possession  of  the 
plaintiff. 

4.  That  before  the  commencement  of  this  action,  to  wit,  on  the 
13th  day  of  November,  1897,  and  again  on  the  2d  day  of  December, 
1897,  the  plaintiff  demanded  of  the  defendant  possession  of  said 
goods  and  chattels,  but  to  deliver  the  possession  thereof  the  defend- 
ant refused. 

5.  That  defendant  still  unlawfully  withholds  and  detains  said 
goods  and  chattels  from  the  possession  of  the  plaintiff,  to  her  dam- 
age, by  reason  of  said  withholding  and  detention,  in  the  sum  of  $200. 

[Concluding  part.] 

§422.     ANSWERS. 

FORM    No.  1001 — Defense  of  general  denial. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  complaint  [or  petition]  of  the 
plaintiff,  denies: 

1.  That  the  plaintiff  was  ever  in  possession  or  entitled  to  the 
possession  of  the  goods  and  chattels  in  the  complaint  [or  petition] 
described,  or  any  thereof. 

2.  That  the  said  goods  and  chattels,  or  any  of  them,  are  or  ever 
were  the  property  of  the  plaintiff. 

3.  That  said  goods  and  chattels  are  or  were  at  the  time  alleged,  or 
at  any  time  since,  of  the  value  of  $  ,  or  any  amount  greater 
than  $ 

[Concluding  part.] 


1642  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV 

FORM   No.  1002 — Defense  that  title  is  in  another  than  the  plaintiff. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition], 
alleges : 

That  the  property  therein  described  was  at  the  time  therein  men- 
tioned, and  still  is,  the  property  of  one  C.  D.,  and  not  the  property 
of  the  plaintiff. 

[Concluding  part.] 

FORM   No.  1003 — Defense  that  defendant  is  part  owner. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition], 
alleges : 

That  at  the  several  times  therein  mentioned,  the  defendant  was, 
and  still  is,  the  owner  of  one  undivided  half  of  said  goods  and  chat- 
tels, and  that  the  whole  of  the  same  then  were  rightfully  in  the 
possession  of  the  defendant. 

[Concluding  part.] 

FORM   No.  1004 — Defense  that  defendant  is  entitled  to  a  lien  on  goods  Tor 
storage  [or  freight]. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition], 
alleges : 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  deposited 
the  goods  mentioned  in  the  complaint  [or  petition]  with  the  defend- 
ant for  storage  [or  for  carriage],  agreeing  to  pay  for  the  said  storage 
[or  carriage]  of  the  same  as  follows:    [State  terms  of  agreement.] 

2.  That  the  defendant  duly  performed  all  the  conditions  of  said 
contract  on  his  part,  and  carefully  and  safely  stored  said  goods  [or 
safely  transported  the  same  according  to  his  said  agreement],  and 
has  always  been,  and  still  is,  ready  and  willing  to  deliver  the  said 
goods  to  the  plaintiff  [or  to  his  consignee]  upon  payment  of  the  sum 
due  for  storage  [or  freight] . 

3.  That  the  plaintiff  has  not  paid  or  tendered  to  the  defendant 
th*  said  sum.  or  any  part  thereof. 

[Concluding  part.] 


Ch.  CXXIL]  ANSWERS.— FORMS.  164:5 

FORM  No.  1005 — Defense  by  common  carrier,  claiming  Hen  for  services.— 
Replevin,  by  the  United  States  of  America,  to  recover 
goods  and  supplies  transported. 

(In  Union  Pacific  R.  Co.  v.  United  States,  2  Wyo.  170.) 
[Title  of  court  and  cause.] 

Now  comes  the  defendant,  the  Union  Pacific  Railroad  Company, 
and  for  answer  to  the  petition  of  the  United  States  of  America,  says : 

1.  That  it  denies  each  and  every  of  the  allegations  stated  and 
contained  in  the  said  petition,  except  that  the  said  defendant  was  a 
corporation  as  therein  alleged.  And  of  this  the  said  defendant  puts 
itself  upon  the  country. 

2.  And  the  defendant,  for  a  further  answer  to  the  petition  of 
plaintiff,  says :  That  it  is  a  common  carrier  of  goods  and  merchan- 
dise for  hire  and  reward,  from  the  city  of  Oklahoma,  in  the  state  of 
Nebraska,  to  the  town  of  Rawlins,  in  the  territory  of  Wyoming; 
that  as  such  common  carrier  it  received  the  said  goods  and  chattels 
in  the  plaintiffs'  petition  mentioned  long  prior  to  the  commence- 
ment of  the  action  herein,  at  Omaha  aforesaid,  from  one  Dwight  J. 
McCann,  then  lawfully  in  the  possession  and  control  of  the  said 
goods  and  chattels,  for  transportation  to  Rawlins,  in  the  territory 
of  Wyoming,  and  that  thereafter,  as  a  common  carrier,  the  said 
defendant  carried  and  transported  the  said  goods  and  chattels  from 
said  Omaha  to  said  Rawlins;  that  under  and  by  virtue  of  the  con- 
tract under  which  the  said  goods  and  merchandise  were  carried  and 
transported  the  defendant  was  to  have  the  right  to  retain  the  pos- 
session of  the  said  goods,  chattels,  and  merchandise,  and  of  each  and 
every  part  thereof,  until  its  charges  for  the  carriage,  transportation, 
and  storage  of  the  same  should  be  fully  paid  and  discharged ;  that 
its  charges  for  the  carriage,  transportation,  and  storage  of  said 
goods,  wares,  and  merchandise  have  not,  nor  has  any  part  thereof, 
ever  been  paid ;  that  its  charges  as  aforesaid  on  the  20th  day  of  No- 
vember, 1877,  amounted  to  the  sum  of  $588.16,  to  wit,  for  freight  and 
transportation,  $496.86,  and  $91.30  for  storage ;  that  on  the  20th  day 
of  November,  1877,  under  and  by  virtue  of  the  contract  aforesaid,  and 
under  its  lien  as  a  common  carrier,  it  had  a  special  ownership  in 
the  said  property,  goods,  wares,  and  merchandise,  in  the  plaintiff's 
petition  mentioned,  and  in  each  and  every  part  thereof,  and  on  said 
date  was  entitled  to  the  possession  of  the  said  property,  and  of  each 
and  every  part  thereof;  that,  therefore,  plaintiff  wrongfully  and 


1644  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

unlawfully  deprived  the  defendant  of  the  possession  of  the  prop- 
erty in  the  plaintiff's  petition  mentioned,  to  the  damage  of  the 
defendant  in  the  sum  of  $588.16. 

Wherefore,  the  defendant  prays  judgment  against  the  plaintiff 
for  the  said  sum  of  $588.16,  with  interest  thereon  since  the  20th  day 
of  November,  1877,  and  costs  of  this  action. 

"W.  R.  Steele, 
Attorney  for  defendant. 

FORM   No.  1006 — Defense  of  lien  for  services  for  manufacturing. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition], 
alleges : 

1.  That  said  goods  were  manufactured  by  the  defendant,  as  [here 
state] ,  and  were  detained  by  him  by  virtue  of  his  lien  as  a  mechanic 
and  the  manufacturer  thereof  as  security  for  the  payment  of  $  , 
which  is  the  amount  due  him  from  the  plaintiff  for  work  and  labor 
in  manufacturing  them. 

2.  That  the  defendant  has  always  been,  and  still  is,  ready  and 
willing  to  deliver  the  said  goods  to  the  plaintiff  upon  receiving  the 
said  amount,  but  the  plaintiff  has  not  paid  or  tendered  the  same, 
which  is  still  due  and  unpaid. 

FORM   No.  1007 — Defense   by   sheriff. — Justification   of  taking   under  attach- 
ment. 

[Title  of  court  and  cause.] 

The  defendant  answering  the  plaintiff's  complaint  [or  petition], 
alleges : 

1.  That  on  the  day  of  ,  19  ,  one  C.  D.  was,  and  from 
that  time  until  the  day  of  ,  19  ,  remained,  the  sole  owner 
of  all  the  goods  and  chattels  described  in  the  complaint  [or  peti- 
tion]. 

2.  That  on  the  day  of  ,  19  ,  an  action  was  duly  com- 
menced by  one  E.  F.  against  the  said  C.  D.,  in  the  court  of  the 
county  of  ,  in  the  state  of  ,  to  recover  $  ,  alleged 
to  be  due  for  [state  what]. 

3.  That  on  the  said  date  a  summons  was  issued  in  due  form  in  the 
last-named  action,  and  on  said  date  was  duly  served  upon  the  said 
C.  D.  by  the  defendant,  as  the  sheriff  of  the  county  of  ,  by 


Ch.  CXXII.]  ANSWERS.— FORMS.  1645 

delivering  to  the  said  C.  D.,  personally  a  true  copy  thereof,  attached 
to  a  copy  of  the  complaint  [or  petition]  therein,  at 

4.  That  on  said  date  a  writ  of  attachment  was  duly  issued  in  due 
form  in  the  said  last-named  action,  after  the  summons  was  issued 
therein,  and  placed  in  the  hands  of  the  defendant,  as  sheriff  afore- 
said ;  that  on  said  date  the  said  sheriff  delivered  a  true  copy  of  said 
writ  of  attachment  to  ,  in  whose  possession  the  property 
described  in  said  complaint  [or  petition]  then  was,  together  with  a 
written  notice  signed  by  said  sheriff,  endorsed  on  said  copy  of  said 
writ  of  attachment,  and  directed  to  said  ,  notifying  him  that 
all  moneys,  goods,  credits,  effects,  debts  due  or  owing,  or  any  other 
personal  property  in  his  possession  or  under  his  control  belonging 
to  said  C.  D.,  were  attached  by  virtue  of  said  writ  of  attachment, 
and  not  to  pay  over  or  transfer  the  same  to  any  one  but  him,  the 
said  sheriff. 

5.  That  thereafter,  to  wit,  on  the  day  of  ,  19  ,  judg- 
ment was  duly  made,  rendered,  and  entered  in  said  last-named 
action,  in  said  court,  against  said  C.  D.,  and  in  favor  of  said 
E.  F.,  for  the  sum  of  $ 

6.  That  on  the  day  of  ,  19  ,  an  execution  was  duly 
issued  in  due  form  in  said  court,  under  and  by  virtue  of  said 
judgment,  which  execution  was  on  said  last-mentioned  date  placed 
in  the  hands  of  the  defendant,  as  sheriff,  for  service. 

7.  That  said  sheriff  executed  the  same  by  delivering  to  said  , 
personally,  on  the  day  of  ,  19  ,  at  ,  a  true  copy 
of  said  execution,  and  a  notice,  in  writing,  notifying  said  that 
all  moneys,  goods,  credits,  effects,  debts  due  or  owing,  or  any  prop- 
erty in  his  possession  or  under  his  control,  belonging  to  the  said 
C.  D.,  were  levied  upon  by  virtue  of  said  writ  of  execution,  and  not 
to  pay  over  or  transfer  the  same  to  any  one  but  him,  the  said  sheriff, 
and  by  delivering  to  the  said  C.  D.  personally,  on  the            day  of 

,  19     ,  at  ,  a  true  copy  of  said  writ  of  execution  and 

notice,  together  with  a  description  of  the  property  levied  upon. 

8.  That  said  sheriff,  by  virtue  of  said  writ  of  execution,  duly 
levied  upon,  on  the  day  of  ,  19  ,  all  the  right,  title,  and 
interest  of  said  C.  D.  in  and  to  the  property  described  in  the  com- 
plaint, the  same  then  being  in  the  possession  of  said  ,  and 
being  the  sole  property  of  the  said  C.  D.,  by  taking  all  of  said 
property  into  his  possession,  and  by  delivering  to  said  on 


Ig46  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

the  day  of  ,  19     ,  a  true  copy  of  said  writ  of  execution, 

together  with  a  description  of  all  of  said  property,  and  a  written 
notice  that  said  property,  and  all  the  right,  title,  and  interest  of 
said  C.  D.  therein,  was  levied  upon,  and  by  delivering  to  said  C.  D. 
personally  on  the  day  of  ,  19     ,  at  ,  a  true  copy  of 

said  writ  of  execution,  description,  and  notice. 

9.  That  said  sheriff,  on  the  day  of  ,  19  ,  duly  adver- 
tised all  of  said  property  in  accordance  with  law,  by  posting 
notices  of  sale,  particularly  describing  said  property,  in  public 
places  in  ,  advertising  said  property  to  be  sold  at  public 
auction  in  view  thereof,  at  [place  of  sale],  on  ,  19  , 
between  the  hours  of  and  ,  and  that  on  said  day  all  of 
said  described  property  was  by  said  sheriff,  at  the  hour  of  , 
and  at  the  place  aforesaid,  exposed  for  sale  at  public  auction,  and 
was  sold  in  separate  lots  or  parcels  to  the  highest  and  best  bidders 
for  cash,  the  whole  thereof  being  sold  for  the  sum  of  $  ,  which 
said  sum,  less  the  sum  of  $             ,  sheriff's  costs,  was  on  the 

day  of  ,  19     ,  credited  on  said  execution  and  judgment. 

10.  [Denial  that  plaintiff  was  the  owner  or  in  possession  of  said 
goods  and  chattels,  or  any  thereof.] 

[Concluding  part.] 

FORM  No.  1008 — Defenses — (1)  that  foreign  corporation  plaintiff  had  not 
filed  articles  or  designated  resident  agent,  (2)  justifica- 
tion of  the  taking  of  outlawed  and  gambling  devices, 
(3)  specific  denials  of  value,  etc. — In  replevin,  by  foreign 
corporation. 

(In  Mills  Novelty  Co.  v.  Dunbar,  11  Idaho  671;  83  Pac.  932.) 

[Title  of  court  and  cause.] 

[After  introductory  part  and  admission  of  incorporation  of 
plaintiff,  the  answer  avers  in  substance:]  *  *  *  That  the 
plaintiff  has  not  filed  a  copy  of  its  articles,  certified  or  otherwise, 
in  the  office  of  the  secretary  of  state  of  the  state  of  Idaho,  and  has 
not,  in  writing  or  otherwise,  designated  any  person  residing  within 
the  state  as  its  agent  upon  whom  legal  process  may  be  served,  and 
denies  that  the  plaintiff  was,  on  the  22d  day  of  October,  1904,  or  at 
any  other  time,  at  the  city  of  Boise,  or  any  other  place  within  the 
state  of  Idaho,  lawfully  possessed  of  said  slot-machines,  or  that  the 
plaintiff  was  at  the  commencement  of  this  action,  or  at  any  time 


Ch.  CXXIL]  ANSWERS— FORMS.  1647 

since,  entitled  to  the  possession  of  said  slot-machines;  denies  that 
said  slot-machines  are  of  the  value  of  $325,  or  any  other  sum;  denies 
that  said  slot-machines,  or  any  part  thereof,  were  on  said  date,  or  at 
any  time,  the  property  of  the  plaintiff;  denies  that  the  plaintiff  at 
any  time  before  the  commencement  of  this  action  demanded  the 
possession  of  said  slot-machines;  denies  that  he  still  unjustly  detains 
the  same,  or  ever  at  any  time  unjustly  detained  the  same,  to  the 
damage  of  the  plaintiff  in  any  sum  whatever. 

For  a  second  defense,  the  defendant  alleges: 

That  he  is  a  duly  appointed,  qualified,  and  acting  justice  of  the 
peace  in  and  for  Boise  Precinct  No.  2,  Ada  County,  Idaho;  that  on 
the  22d  day  of  October,  1904,  information  was  presented  to  him  as 
such  justice  of  the  peace,  by  which,  as  such  justice  of  the  peace,  he 
was  informed  and  satisfied  that  gambling  devices,  to  wit,  said  nine 
slot-machines,  were  then  within  the  said  city,  and  then  in  operation 
as  such  gambling  devices  in  said  city ;  that  said  information  was 
derived  from  an  affidavit  of  the  prosecuting  attorney  of  said  county ; 
that  thereupon  defendant,  acting  as  such  justice  of  the  peace,  forth- 
with issued  warrants  to  "the  sheriff  or  any  deputy  sheriff  or  con- 
stable in  said  county,"  commanding  that  said  slot-machines  be 
brought  before  him  at  his  office  in  said  city;  that  thereupon  said 
slot-machines  were,  under  and  by  virtue  of  said  warrants  placed  in 
the  hands  of  A.  Anderson,  the  constable  of  said  county,  seized  and 
brought  before  the  defendant,  as  justice  of  the  peace,  to  be  dealt 
with  according  to  law  and  the  statute  in  such  cases  made  and  pro- 
vided, and  that  such  slot-machines  were  in  the  custody  of  the  law, 
and  in  the  possession  and  under  the  control  of  said  A.  Anderson,  as 
constable,  subject  to  the  order  of  said  justice's  court,  at  the  time  of 
the  commencement  of  this  action, — all  of  which  facts  were  well 
known  to  plaintiff  and  its  agents  and  attorneys  at  the  time  of  the 
institution  of  this  action;  that  said  slot-machines  are,  and  each 
of  them  is,  adapted  to,  and  designed  and  designated  for,  the  pur- 
pose of  being  used  solely  in  gambling ;  that  they  were  at  the  time  the 
same  were  seized  and  for  many  days  prior  thereto,  *  *  *  being 
used  for  the  sole  purpose  of  gambling  and  playing  games,  at  which 
money  was  bet  and  won  or  lost;  that  said  slot-machines  were  gam- 
bling devices,  *  *  *  and  that  the  same  and  all  of  them  are  out- 
lawed property,  without  value  or  ownership,  at  the  time  of  the  com- 
mencement of  this  action  and  at  all  times  since  said  date;  that  said 


1648  CLAIM  AND  DELIVERY.— REPLEVIN.  [Tit.  XV. 

machines  are  not  susceptible  of  any  legitimate  use,  and  that  the  same, 
and  all  thereof,  are  instruments  of  crime,  designed  and  devised  for 
the  purpose  of  violating  the  statutes  of  this  state  prohibiting  gam- 
bling, and  are  incapable  of  ownership ;  that  such  slot-machines  were 
at  the  time  of  the  commencement  of  this  action,  and  at  the  times  men- 
tioned in  the  complaint,  in  the  possession  of  the  said  constable. 
Wherefore  [etc.].  Quarles  &  Pritchard, 

Attorneys  for  defendant. 

For  various  other  forms  in  claim  and  delivery  or  replevin,  see  the  following  (ch. 
XXIII):  Affidavit  on  claim  and  delivery,  form  No.  211;  Order  and  demand  upon 
sheriff,  endorsed  upon  affidavit,  form  No.  212;  Certificate  of  sheriff,  endorsed  upon 
affidavit,  form  No.  213;  Undertaking,  form  No.  214;  Justification  of  sureties  on  under- 
taking, form  No.  215;  Sheriff's  certificate  of  service  of  undertaking,  form  No.  2l6. 

Forms  of  complaint  in  actions  of  replevin:  Wegner  v.  Second  Ward  Sav.  Bank,  76 
Wis.  242,  44  N.  W.  1096;  Scully  v.  Porter,  3  Kan.  App.  493,  496,  43  Pac.  824,  825. 

Form  of  answer  in  an  action  to  obtain  possession  of  certain  personal  property, 
held  by  the  sheriff  under  attachment:    Butts  v.  Privett,  36  Kan.  711,  14  Pac.  247. 

Form  of  answer  in  an  action  in  replevin  to  recover  the  possession  of  a  warranty 
deed:    Richards  v.  Gaskill,  39  Kan.  428,  18  Pac.  494. 

Form  of  affidavit  in  replevin:    Gardner  v.  King,  37  Kan.  671,  15  Pac.  920,  921. 

Form  of  bond  in  an  action  upon  a  redelivery  bond  in  replevin:  Kennedy  v.  Brown, 
21  Kan.  171,  175. 

Form  of  redelivery  bond  in  an  action  in  replevin:  Nye  v.  Weiss,  7  Kan.  App.  627, 
53  Pac.  152. 

Form  of  notice  of  appeal  in  an  action  in  replevin  to  recover  possession  of  sundry 
chattels  alleged  to  be  wrongfully  taken  and  withheld  by  the  defendant,  sheriff,  who 
seized  said  property  as  the  property  of  the  defendant:  Corbell  v.  Childers,  17  Ore. 
528,  21  Pac.  670. 

For  agreed  statement  of  facts  in  action  to  recover  personal  property  or  its  value, 
Bee  Blankinship  v.  Oklahoma  City  etc.  Co.,  4  Okla.  242,  43  Pac.  1088. 

For  agreed  statement  of  facts  in  action  in  replevin  by  the  United  States  of 
America  to  recover  from  common  carrier  goods  and  supplies  transported  by  such 
common  carrier  and  upon  which  defendant  claimed  the  right  of  lien  for  its  services, 
see  Union  Pacific  R.  Co.  v.  United  States,  2  Wyo.  170. 

For  agreed  statement  of  facts  in  action  in  replevin,  and  to  determine  rights  and 
title  to  property  of  an  attaching  creditor  whose  remedy  is  perfected,  as  against  an 
attaching  creditor  held  to  have  released  his  lien  by  laches  in  pursuing  his  remedy, 
see  Speelman  v.  Chaffee,  5  Colo.   247. 

§423.     ANNOTATIONS. — Claim  and  delivery  of  personal  property. — Replevin. 

1.  Essentials  of  complaint. 
2,  3.  Allegation   as    to   ownership. 
4,  5.  Possession  in  defendant  an  essential. 

6.  Gist  of  the  action  of  replevin  under  the  statutes. 
7-9.  When  action  will  lie. 

10.  Demand  in  replevin. 

11.  Demand  unnecessary  where  seizin  is  unlawful. 

12.  Defense. — Estoppel  to  deny  taking. 

13.  Defense  as  to  demurrage  tendered. 


Ch.  CXXII.] 


ANNOTATIONS. 


1640 


14.  Action   npon  replevin  bond. 

15.  Dismissed  attachment  suit  not  a  bar  to  replevin. 

16.  Decision  in  replevin. 


1.  Essentials  of  complaint. — In  a  suit 
to  recover  personal  property,  the  com- 
plaint must  show  the  ultimate  fact  that 
the  plaintiff  was  the  owner  or  entitled 
to  the  possession  at  the  time  of  the 
commencement  of  the  action;  and  it  is 
not  sufficient  to  merely  aver  that  he 
was  the  owner  or  entitled  to  the  pos- 
session at  some  period  prior  to  that 
time:  Manti  City  Sav.  Bank  v.  Peter- 
son, 30  Utah  475,  86  Pac.  414,  116  Am. 
St.  Rep.  862,  (replevin),  citing  Freder- 
icks v.  Tracy,  98  Cal.  658,  660,  33  Pac. 
750;  Afflerback  v.  McGovern,  79  Cal. 
268,  269,  21  Pac.  837;  Masterson  v.  Clark 
(Cal.),  41  Pac.  796;  Holly  v.  Heiskell, 
112  Cal.  174,  175,  44  Pac.  466;  Kimball 
Co.  v.  Redfield,  33  Ore.  292,  54  Pac.  216. 

2.  Allegation  as  to  ownership. — In  an 
action  of  claim  and  delivery  of  personal 
property,  a  general  allegation  of  owner- 
ship is  ordinarily  sufficient:  Illinois 
Sewing  M.  Co.  v.  Harrison,  43  Colo.  362, 
&6  Pac.  177;  Benesch  v.  Waggner,  12 
Colo.  534,  21  Pac.  706,  13  Am.  St.  Rep. 
254;  Baker  v.  Cordwell,  6  Colo.  199; 
Hanna  v.  Barker,  6  Colo.  303,  313. 

3.  Ownership  implies  right  of  posses- 
sion.— A  general  allegation  of  a  right  to 
the  possession  of  goods  and  chattels  de- 
manded in  replevin  is  sufficiently  main- 
tained by  evidence  of  ownership  alone, 
for  the  reason  that  the  ownership  of 
property  usually  carries  with  it  the 
right  of  possession;  this,  however,  is 
subject  to  any  special  right  to  posses- 
sion of  the  property,  as  may  be  shown 
by  the  adverse  party:  Krebs  Hop  Co. 
v.  Taylor,  52  Ore.  627,  97  Pac.  44,  45, 
citing  Cassel  v.  Western  Stage  Co.,  12 
Iowa  47,  as  to  exception  where  special 
right  to  possession  is  shown. 

4.  Possession  in  defendant  an  essen- 
tial.—A  plaintiff  can  not  recover  in  an 
action  in  claim  and  delivery  where  it 
appears  that  the  defendant  did  not  have 
the  property  in  his  possession  at  the 
time  of  the  commencement  of  the  ac- 
tion: Riciotto  v.  Clement,  94  Cal.  105, 
29   Pac.    414. 

5.  A  plaintiff  in  replevin  must  re- 
cover, if  at  all,  on  the  strength  of  his 
own  claim,  and  a  failure  to  prove  his 
right  to  the  immediate  possession  of  the 


property,  where  the  illegal  detention  Is 
denied,  is  a  failure  of  proof  upon  a  ma- 
terial point:  Bard  well  v.  Stubbert,  17 
Neb.  4S5,  23  N.  W.  444;  Krebs  Hop  Co. 
V.  Taylor,  52  Ore.  627,  97  Pac.  44,  46. 

6.  Gist  of  the  action  of  replevin  under 
the  statutes. — An  action  of  replevin  at 
common  law  could  be  maintained  only 
when  the  personal  property  sought  to  be 
recovered  was  wrongfully  taken.  The 
remedy  has  generally  been  extended  by 
statute  so  as  to  include  an  unlawful  de- 
tention, and  the  gist  of  the  action  is 
now  regarded  as  the  wrongful  holding 
by  a  person  of  goods,  chattels,  etc.,  the 
right  to  the  immediate  possession  of 
which  is  in  another:  Krebs  Hop.  Co.  v. 
Taylor,  52  Ore.  627,  97  Pac.  44,  45;  Nunn 
v.  Bird,  36  Ore.  515,  59  Pac.  808. 

7.  When  action  will  lie. — The  action 
of  replevin  lies  only  against  the  party 
who  wrongfully  detains  the  property  in 
controversy  from  the  complainant, — a 
fact  which  must  be  alleged  by  the  re- 
lator in  his  complaint  and  proved  on  the 
trial:  Barnes  v.  Plessner,  137  Mo.  App. 
571,  119  S.  W.  457,  458,  citing  Mo.  Rev. 
Stats.  1S99,  §  3901,  Ann.  Stats.  1906,  p. 
2156;  Davis  v.  Randolph,  3  Mo.  App.  454. 

8.  An  action  in  claim  and  delivery  for 
the  possession  of  shares  of  stock  in  a 
corporation,  as  being  intangible  prop- 
erty, will  not  lie:  Ashton  v.  Heydenfeldt, 
124  Cal.  14,  56  Pac.  624;  Bell  v.  Bank  of 
California,  153  Cal.  234,  238,  94  Pac.  889. 

9.  An  action  of  replevin  can  not  be 
maintained  against  one  not  in  the  actual 
or  constructive  possession  of  property, 
unless  he  has  sold,  disposed  of,  or  re- 
moved the  same  with  intent  of  avoid- 
ing the  writ:  Robb  v.  Dobrinski,  14 
Okla.  563,  78  Pac.  101,  1  Am.  &  Eng. 
Ann.  Cas.  981;  Depriest  v.  McKinstry, 
38  Neb.  194,  56  N.  W.  806;  Riciotto  v. 
Clement,  94  Cal.  105,  29  Pac.  414;  Davis 
v.  Van  De  Mark,  45  Kan.  130,  25  Pac. 
589;  Gardner  v.  Brown,  22  Nev.  156,  37 
Pac.  240.  See  cases  enumerated  in  note 
to  Robb  v.  Dobrinski,  supra,  1  Am.  & 
Eng.  Ann.  Cas.  984. 

10.  Demand  In  replevin. — The  better 
rule  would  appear  to  be  that  a  demand 
is  not  an  essential  averment  in  replevin; 
for,    as    it    has    been    well    said,    "if    the 


lG^O 


CLAIM  AND  DELIVERY.— REPLEVIN. 


[Tit.  XV. 


plaintiff  is  entitled  to  immediate  posses- 
sion, the  detention  by  the  defendant  is 
wrongful;  if,  however,  no  demand  be 
made  before  the  institution  of  the  suit, 
and  the  original  possession  of  the  de- 
fendant were  lawful,  he  may  tender  the 
property  to  the  plaintiff,  and,  upon  its 
delivery,  by  proper  plea,  discharge  the 
action.  But  if,  instead  of  this  course, 
he  denies  the  right  of  the  plaintiff,  and 
contests  the  action  upon  its  merits,  he 
can  not,  after  a  verdict  against  him,  de- 
feat a  recovery  on  the  ground  that  there 
was  no  demand.  The  writ  is  a  demand, 
and  defending  the  suit  a  refusal":  Citi- 
zens' State  Bank  v.  Chattanooga  State 
Bank  (Okla.),  101  Pac.  1118,  1120,  quot- 
ing from  Dearing  v.  Ford,  13  Smedes  & 
M.  (Miss.),  274,  and  referring  for  cases 
supporting  this  rule  to  24  Am.  &  Eng. 
Ency.  Law,  2d  ed.,  p.  510,  notes  4,  6. 

11.  Demand  unnecessary  where  seizin 
is  unlawful.— Where  the  seizin  is  un- 
lawful, it  is  not  necessary  to  allege  a 
demand  in  replevin:  Krebs  Hop  Co.  v. 
Taylor,  52  Ore.  627,  97  Pac.  44,  45; 
Surles  v.  Sweeney,  11  Ore.  21,  4  Pac. 
469;  Moorhouse  v.  Donaca,  14  Ore.  430, 
13  Pac.  112. 

12.  Defense. — Estoppel   to  deny  taking. 

Where   to   the   complaint   in   an   action 

in  claim  and  delivery  to  recover  the  pos- 
session of  certain  cattle,  the  defendant 
answered  and  alleged  the  taking  of  the 
property  described  in  the  complaint,  to- 
gether with  other  property,  in  a  chattel 
mortgage,  and  afterwards  upon  the  trial 
offered  to  show  that  the  stock  did  not 
answer  the  description  contained  in  the 
complaint;  held,  that  such  evidence  was 
properly  rejected,  inasmuch  as  by  its 
answer  the  defendant  had  estopped 
itself  from  claiming  that  it  had  not 
taken  the  property  described  in  the  com- 
plaint, there  being  no  request  made  to 
amend  the  answer:  Kime  v.  Edgemont, 
22  S.  Dak.  630,  119  N.  W.  1003. 

13.  Defense  as  demurrage  tendered. — 
A   defense    to    an    action    in    replevin    to 


recover  from  defendant,  a  railway  cor- 
poration, under  the  laws  of  Missouri, 
the  possession  of  certain  specifically  de- 
scribed lumber,  which  defense  is  based 
upon  a  count  in  which  the  defendant  al- 
leges a  certain  tender  of  demurrage  as 
to  each  car,  but  fails  to  allege  that  the 
amount  so  tendered  was  a  reasonable 
sum  for  such  charges,  and  fails,  in  view 
of  an  interstate  commerce  regulation,  to 
aver  that  the  amounts  were  sufficient  to 
meet  the  same;  held,  that  the  demurrer 
was  properly  sustained  thereto:  Dar- 
lington L.  Co.  v.  Missouri  Pacific  R.  Co., 
216  Mo.  658,  116  S.  W.  530,  537. 

14.  Action  upon  replevin  bond. — In  all 
suits  on  replevin  bonds,  it  is  provided 
in  the  Missouri  statutes  (Rev.  Stats. 
1899,  §  3924,  Ann.  Stats.  1906,  p.  2165> 
that  where  the  action  is  dismissed  for 
want  of  jurisdiction,  the  defendant 
therein  shall  have  a  right  of  action  on 
the  bond,  but  that  in  such  action  the 
defendants  (plaintiffs  in  the  original  ac- 
tion) "shall  have  the  right  to  set  up  as 
a  defense  the  ownership  or  the  right  of 
possession  of  the  property  involved  in 
the  original  replevin  suit":  Bailey  v. 
Dennis,  135  Mo.  App.  93,  115  S.  W.  506, 
507. 

15.  Dismissed  attachment  suit  not  a 
bar  to  replevin. — The  bringing  of  an  at- 
tachment suit  which  is  dismissed  before 
judgment  does  not  bar  a  suit  in  re- 
plevin arising  out  of  the  same  transac- 
tion: Johnson-Brinkman  Com.  Co.  v. 
Missouri  Pacific  R.  Co.,  126  Mo.  344,  28 
S.  W.  870,  26  L.  R.  A.  840,  47  Am.  St. 
Rep.  675,  approved  in  Tower  v.  Compton 
Hill  I.  Co.,   192  Mo.  379,  91  S.  W.   104. 

16.  The  decision  in  replevin  should  re- 
spond to  all  the  issues  raised  by  the 
pleadings,  and,  as  unlawful  detainer  is 
the  gist  of  the  action,  should  speak  un- 
equivocally as  to  that:  Barnes  v.  Pless- 
ner,  137.  Mo.  App.  571,  119  S.  W.  457. 
458;  Mercer  v.  James,  6  Neb.  406;  Smith 
v.  Smith,  17  Ore.  444,  21  Pac.  449. 


Ch.  CXXIII.j  CODE  PROVISIONS,  ETC.  1651 


CHAPTER   CXXIII. 

Injunction. 

Page 

§  424.  Code   provisions    1651 

§  425.  Complaints   [or  petitions]    1659 

Form  No.  1009.  For  injunction  against  waste 1659 

Form  No.  1010.  To  restrain  negotiation  of  note 1660 

Form  No.  1011.  To  restrain  threatened  injury  to  an  invaluable 

chattel 1660 

Form  No.  1012.  To  enjoin   obstruction   maintained   by   a   rail- 
road corporation  along  a  public  highway..     1661 
Form  No.  1013.  To  enjoin  claimants  from  asserting  or  claim- 
ing, except  in  present  action,  under  alleged 

mechanics'  liens   1662 

§  426.  Orders,  decrees,  etc 1663 

Form  No.  1014.  Order  to  show  cause,  and  interlocutory  in- 
junction        1663 

Form  No.  1015.  Temporary    injunction    pendente    lite,    condi- 
tioned on  giving  of  bond  by  the  plaintiff..     1664 
Form  No.  1016.  Injunction  pendente  lite  to   restrain  continu- 
ance of  trespass   1666 

Form  No.  1017.  Undertaking  on  injunction 1666 

Form  No.  1018.  Order  granting  motion  dissolving  injunction.      1667 

Form  No.  1019.  Order  dissolving  or  modifying  injunction 1667 

Form  No.  1020.  Judgment  for  defendant  dissolving  temporary 
injunction,  etc.,  in  action  to  restrain  a 
church  society  from  converting  church 
property,  misdirecting  its  use,  etc 1668 

§  427.  Annotations I669 


§424.     CODE  PROVISIONS. 

Preventive  relief,  how  granted. 

California,  §  3420.    Preventive  relief  is  granted  by  injunction,  pro- 
visional or  final.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6118.     North  Dakota,  Rev.  Codes  1905,  §  6628. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2359. 


1652 


INJUNCTION.  [Tit.  XV. 


Provisional  injunctions. 
California,  §  3421.     Provisional  injunctions  are  regulated  by  the 
Code  of  Civil  Procedure.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6119.     North  Dakota,  Rev.  Codes  1905,  §  6629. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2360. 


Injunction  to  prevent  breach  of  an  obligation. 
California,  §  3422.    Except  where  otherwise  provided  by  this  title, 
a  final  injunction  may  be  granted  to  prevent  the  breach  of  an  obli- 
gation existing  in  favor  of  the  applicant: 

1.  "Where    pecuniary    compensation    would    not    afford    adequate 

relief ; 

2.  Where  it  would  be  extremely  difficult  to  ascertain  the  amount 
of  compensation  which  would  afford  adequate  relief ; 

3.  Where  the  restraint  is  necessary  to  prevent  a  multiplicity  of 
judicial  proceedings;  or, 

4.  Where  the  obligation  arises  from  a  trust.  (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

»  Iowa,  Ann.  Code  1897,  §  4354.  Montana,  Rev.  Codes  1907,  §  6120.  North 
Dakota,  Rev.  Codes  1905,  §  6630.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2361. 

a  Iowa,    §  4354.     An   injunction  may  be  pray    and    have    a    writ    of    injunction 

obtained  as  an  independent  remedy  in  an  against  the  repetition  or  continuance  of 

action    by    equitable    proceedings,    in    all  such  breach  of  contract  or  other  injury, 

cases  where  such  relief  would  have  been  or  the  commission  of  any  breach  of  con- 

granted  in  equity  previous  to  the  adop-  tract  or  injury  of  a  like  kind  arising  out 

tion    of    the    code;    and    in   all    cases    of  of  the  same  contract  or  relating  to  the 

breach  of  contract  or  other  injury,  where  same  property  or  right,  and  he  may  also, 

the  party  injured  is  entitled  to  maintain  in  the  same  action,   include  a  claim  for 

and   has  brought   an  action  by  ordinary  damages  or  other  redress, 
proceedings,  he  may,  in  the  same  cause, 


When  injunction  cannot  be  granted. 
California,  §  3423.    An  injunction  cannot  be  granted : 

1.  To  stay  a  judicial  proceeding  pending  at  the  commencement  of 
the  action  in  which  the  injunction  is  demanded,  unless  such  restraint 
is  necessary  to  prevent  a  multiplicity  of  such  proceedings. 

2.  To  stay  proceedings  in  a  court  of  the  United  States. 


Ch.  CXXIII.]  CODE  PROVISIONS.  1653 

3.  To  stay  proceedings  in  another  state  upon  a  judgment  of  a 
court  of  that  state. 

4.  To  prevent  the  execution  of  a  public  statute,  by  officers  of  the 
law,  for  the  public  benefit. 

5.  To  prevent  the  breach  of  a  contract,  the  performance  of  which 
would  not  be  specifically  enforced. 

6.  To  prevent  the  exercise  of  a  public  or  private  office,  in  a  law- 
ful manner,  by  the  person  in  possession. 

7.  To  prevent  a  legislative  act  by  a  municipal  corporation.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

•  Arizona,  Rev.  Stats.  1901,  H  2743.  b  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
5  3986.  c  lowa,  Ann.  Code  1897,  §  4364.  Montana,  Rev.  Codes  1907,  §  6121. 
North  Dakota,  Rev.  Codes  1905,  §  6631.  South  Dakota,  Rev.  Codes  1903,  C.  C. 
§2362.  <J  Washington,  Code  1910  (Rem.  &  Bal.),  §471.  « Wyoming,  Rev. 
Stats.  1899,  §  3802. 

a  Arizona,   fl  2743.     No   injunction  shall  tion  must  be  brought  in  the  county  and 

be  granted  to  stay  any  judgment  or  pro-  court    in   which    such    action    is    pending 

ceedings  at  law,   except  so  much  of  the  or  the  judgment  or  order  was  obtained, 

recovery  or  cause  of  action  as  the  com-  unless   such   judgment   or   final   order   is 

plainant    shall    in    his    complaint    show  obtained  in  the  supreme  court,  in  which 

himself  equitably  entitled  to  be  relieved  case  the  action  must  be  brought  in  the 

against,  and  so  much  as  will  cover  the  county   and   court   from   which   the  case 

costs.  was  taken  to  the  supreme  court. 

b  Arkansas,  §3986.  An  injunction  to  d  Washington,  §471.  The  party  seek- 
stay  proceedings  on  a  judgment  or  final  ing  to  vacate  or  modify  a  judgment  or 
order  of  a  court  shall  not  be  granted  in  order  may  obtain  an  injunction  suspend- 
an  action  brought  by  the  party  seeking  ing  proceedings  on  the  whole  or  part 
the  injunction  in  any  other  court  than  thereof,  which  injunction  may  be  granted 
that  in  which  the  judgment  or  order  by  the  court  or  the  judge,  upon  its  be- 
was  rendered  or  made.  Nor  shall  such  ing  rendered  probable,  by  affidavit  or  pe- 
injunction  be  granted  unless  the  party  tition  sworn  to,  or  by  exhibition  of  the 
applying  therefor  makes  affidavit  that  record,  that  the  party  is  entitled  to  hav« 
no  injunction  has  been  previously  such  judgment  or  order  vacated  or  modi- 
granted  to  stay  the  proceedings  on  such  fled. 
Judgment  or  order.  e  Wyoming,    §3802,    substantially  same 

c  lowa,  §  4364.     When  proceedings  in  a  as    Washington    §  471,    except    in    line    7, 

civil  action,   or  on  a  judgment  or  final  after  "affidavit"  omit  "or  petition  sworn 

order,  are  sought  to  be  enjoined,  the  ac-  to"  before  "or  by  exhibition." 


Injunction — When  it  may  and  may  not  be  granted. 

California,  §  526.  An  injunction  may  be  granted  in  the  following 
cases : 

1.  When  it  appears  by  the  complaint  that  the  plaintiff  is  entitled 
to  the  relief  demanded,  and  such  relief,  or  any  part  thereof,  consists 

Jury's  PL— 105. 


1654  INJUNCTION.  [Tit.  XV. 

in  restraining  the  commission  or  continuance  of  the  act  complained 
of.  either  for  a  limited  period  or  perpetually; 

2.  When  it  appears  by  the  complaint  or  affidavits  that  the  commis- 
sion or  continuance  of  some  act  during  the  litigation  would  produce 
waste,  or  great  or  irreparable  injury,  to  a  party  to  the  action ; 

3.  When  it  appears,  during  the  litigation,  that  a  party  to  the  action 
is  doing,  or  threatens,  or  is  about  to  do,  or  is  procuring  or  suffering 
to  be  done,  some  act  in  violation  of  the  rights  of  another  party  to  the 
action  respecting  the  subject  of  the  action,  and  tending  to  render  the 
judgment  ineffectual ; 

4.  When  pecuniary  compensation  would  not  afford  adequate  relief; 

5.  Where  it  would  be  extremely  difficult  to  ascertain  the  amount  of 
compensation  which  would  afford  adequate  relief; 

6.  Where  the  restraint  is  necessary  to  prevent  a  multiplicity  of 
judicial  proceedings ; 

7.  Where  the  obligation  arises  from  a  trust. 

[When  cannot  be  granted.]     An  injunction  cannot  be  granted: 

1.  To  stay  a  judicial  proc«eding  pending  at  the  commencement  of 
the  action  in  which  the  injunction  is  demanded,  unless  such  restraint 
is  necessary  to  prevent  a  multiplicity  of  such  proceedings ; 

2.  To  stay  proceedings  in  a  court  of  the  United  States; 

3.  To  stay  proceedings  in  another  state  upon  a  judgment  of  a  court 
of  that  state; 

4.  To  prevent  the  execution  of  a  public  statute  by  officers  of  the 
law  for  the  public  benefit; 

5.  To  prevent  the  breach  of  a  contract,  the  performance  of  which 
would  not  be  specifically  enforced ; 

6.  To  prevent  the  exercise  of  a  public  or  private  office,  in  a  lawful 
manner,  by  the  person  in  possession ; 

7.  To  prevent  a  legislative  act  by  a  municipal  corporation.  (Kerr's 
Cyc.  Code  Civ.  Proc.  Amended  March  16,  1907,  Stats,  and  Amdts. 
1907,  p.  341.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  th© 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

» Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §386.  b  Arizona,  Rev.  Stats. 
1901,  112742.  c  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §3965.  <J  Colorado, 
Rev.  Stats.  1908,  C.  C.  P.  §  159.  «  Idaho,  Rev.  Codes  1909,  §  4288.  f  Iowa,  Ann. 
Code  1897,  §4354.  s  Kansas,  Gen.  Stats.  1905  (Dassler),  §5133.  b  Minnesota, 
Rev.  Laws  1905,  §  4259.     I  Missouri,  Ann.  Stats.  1906,  §  3630.     i  Montana,  Rev. 


Ch.  CXXIII.] 


CODE  PROVISIONS. 


1655 


Codes  1907,  §6643.  k  Nebraska,  Comp.  Stats.  Ann.  1909,  §0801;  Ann.  Stats. 
1909  (Cobbey),  §1230.  i  Nevada,  Comp.  Laws  Ann.  1900  (Cutting),  §3207. 
m  North  Dakota,  Rev.  Codes  1905,  §  6930.  n  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §4425;  Comp.  Laws  1909  (Snyder),  §5756.  o  Oregon,  Ann. 
Codes  and  Stats.  1902  (Bel.  &  Cot.),  §420.  p  South  Dakota,  Rev.  Codes  1903, 
C.  C.  P.  §197.  q  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  2989.  r  Utah,  Comp. 
Laws  1907,  §3058.  ■  Washington,  Code  1910  (Rem.  &  Bal.),  §719.  t  Wiscon- 
sin, Stats.  1898  (San.  &  Ber.  Ann.),  §§2774,  2775.  u  Wyoming,  Rev.  Stats. 
1899,   §  4039. 


a  Alaska,  C.  C.  P.  S  3SG.  When  it  ap- 
pears by  the  complaint  that  the  plaintiff 
is  entitled  to  the  relief  demanded,  and 
such  relief,  or  any  part  thereof,  consists 
in  restraining  the  commission  or  con- 
tinuance of  some  act  the  commission  or 
continuance  of  which  during  the  litiga- 
tion would  produce  injury  to  the  plaint- 
iff; or  when  it  appears  by  affidavit  that 
the  defendant  is  doing  or  threatens  or  is 
about  to  do,  or  is  procuring  or  suffering 
to  be  done,  some  act  in  violation  of  the 
plaintiff's  rights  concerning  the  subject 
of  the  action,  and  tending  to  render  the 
judgment  ineffectual;  or  when  it  appears 
by  affidavit  that  the  defendant  threatens 
or  is  about  to  remove  or  dispose  of  his 
property,  or  any  part  thereof,  with  in- 
tent to  delay  or  defraud  his  creditors,  an 
injunction  may  be  allowed  to  restrain 
such  act,   removal,   or  disposition. 

b  Arizona,  fl  2742.  Judges  of  the  dis- 
trict courts  may,  either  in  term  time  or 
vacation,  grant  writs  of  injunction,  re- 
turnable to  said  courts,  in  the  following 
cases: 

1.  Where  it  shall  appear  that  the  party 
applying  for  such  writ  is  entitled  to  the 
relief  demanded,  and  such  relief  or  any 
part  thereof  requires  the  restraint  of 
some  act  prejudicial  to  the  applicant. 

2.  Where,  pending  litigation,  it  shall 
be  made  to  appear  that  a  party  is  doing 
some  act  respecting  the  subject  of  liti- 
gation, or  threatens,  or  is  about  to  do 
some  act,  or  is  procuring  or  suffering 
the  same  to  be  done  in  violation  of  the 
rights  of  the  applicant,  which  act  would 
tend  to  render  the  judgment  ineffectual. 

3.  In  all  other  cases  where  the  appli- 
cant for  such  writ  may  show  himself  en- 
titled thereto  under  the  principles  of 
equity. 

c  Arkansas,  §  3965.  Where  it  appears 
by  the  complaint  that  the  plaintiff  is  en- 
titled to  the  relief  demanded,  and  such 
relief,  or  any  part  thereof,  consists  in  re- 
straining the  commission  or  continuance 


of  some  act  which  could  produce  great 
or  irreparable  injury  to  the  plaintiff,  or 
where,  during  the  litigation,  it  appears 
that  the  defendant  is  doing,  or  threatens, 
or  is  about  to  do,  or  is  procuring  or  suf- 
fering to  be  done,  some  act,  in  violation 
of  the  plaintiff's  rights,  respecting  the 
subject  of  the  action  and  tending  to  ren- 
der the  judgment  ineffectual,  a  tempo- 
rary injunction  may  be  granted  to  re- 
strain such  act.  It  may  also  be  granted 
in  any  case  where  it  is  specially  author- 
ized by  statute. 

d  Colorado,  C.  C.  P.  §  159.  An  injunc- 
tion may  be  granted  in  the  following 
cases: 

First — When  it  shall  appear  by  the 
complaint  that  the  plaintiff  is  entitled 
to  the  relief  demanded,  and  such  relief, 
or  some  part  thereof,  consists  in  re- 
straining the  commission  or  continuance 
of  the  act  complained  of,  during  the 
pendency  of  the  litigation,  or  for  a  lim- 
ited period,  or  perpetually. 

Second — When  it  shall  appear  by  the 
complaint  or  affidavit  that  the  commis- 
sion or  continuance  of  some  act  would 
produce  great  or  irreparable  injury  dur- 
ing the  litigation. 

Third — When  it  shall  appear  at  any 
time  in  any  character  of  an  action  dur- 
ing the  litigation,  by  affidavit  or  other- 
wise, that  the  defendant  is  doing,  or 
threatens,  or  is  about  to  do,  some  act, 
or  is  procuring,  or  suffering  to  be  done, 
some  act  in  violation  of  the  plaintiff's 
rights  respecting  the  subject-matter  of 
the  action,  and  tending  to  render  the 
judgment  ineffectual,  and  in  such  other 
cases  as  courts  of  equity  have  hereto- 
fore granted  relief  by  injunction,  or 
which  may  be  specifically  provided  for 
in  this  act;  provided,  that  no  writ  of  in- 
junction shall  issue  to  restrain  the  pas- 
sage of  penal  ordinances  or  the  enforce- 
ment thereof. 

e  Idaho,  §  4288.  An  injunction  may  be 
granted  in   the  following  cases: 


1656 


INJUNCTION. 


[Tit.  XV. 


1.  When  It  appears  by  the  complaint 
that  the  plaintiff  is  entitled  to  the  re- 
lief demanded,  and  such  relief  or  any 
part  thereof,  consists  in  restraining  the 
commission  or  continuance  of  the  act 
complained  of,  either  for  a  limited  pe- 
riod or   perpetually; 

2.  When  it  appears  by  the  complaint 
or  affidavit  that  the  commission  or  con- 
tinuance of  some  act  during  the  litiga- 
tion would  produce  waste,  great  or  irre- 
parable injury  to  the  plaintiff; 

3.  When  it  appears  during  the  litiga- 
tion that  the  defendant  is  doing,  or 
threatens,  or  is  about  to  do,  or  is  pro- 
curing or  suffering  to  be  done,  some  act 
in  violation  of  the  plaintiff's  rights,  re- 
specting the  subject  of  the  action,  and 
tending  to  render  the  judgment  inef- 
fectual; 

4.  When  it  appears,  by  affidavit,  that 
the  defendant  during  the  pendency  of 
the  action  threatens,  or  is  about  to  re- 
move, or  to  dispose  of  his  property  with 
intent  to  defraud  the  plaintiff,  an  in- 
junction order  may  be  granted  to  re- 
strain  the  removal  or  disposition; 

5.  An  injunction  may  also  be  granted 
on  the  motion  of  the  defendant  upon 
filing  a  cross-complaint,  praying  for  af- 
firmative relief  upon  any  of  the  grounds 
mentioned  above  in  this  section,  sub- 
ject to  the  same  rules  and  provisions 
provided  for  the  issuance  of  injunctions 
on  behalf  of  the  plaintiff; 

6.  The  district  courts  or  any  judge 
thereof  sitting  in  chambers,  in  addition 
to  the  powers  already  possessed,  shall 
have  the  power  to  issue  writs  of  injunc- 
tion for  affirmative  relief  having  the 
force  and  effect  of  a  writ  of  restitution, 
restoring  any  person  or  persons  to  the 
possession  of  any  real  property  from  the 
actual  possession  of  which  he  or  they 
may  be  ousted  by  force,  or  violence,  or 
fraud,  or  stealth,  or  any  combination 
thereof,  or  from  which  he  or  they  are 
kept  out  of  possession  by  threats  when- 
ever such  possession  was  taken  from 
him  or  them  by  entry  of  the  adverse 
party  on  Sunday  or  a  legal  holiday,  or 
in  the  night-time,  or  while  the  party  in 
possession  was  temporarily  absent 
therefrom.  The  granting  of  such  writ 
6hall  extend  only  to  the  right  of  pos- 
session under  the  facts  of  the  case,  in 
respect  to  the  manner  in  which  the  pos- 
session was  obtained,  leaving  the  par- 
ties to  their  legal  rights  on  all  other 
questions   the   same   as    though   no   such 


writ  had  issued;  provided,  that  no  such 
writ  shall  issue  except  upon  notice  in 
writing  to  the  adverse  party  of  at  least 
five  days'  of  the  time  and  place  of  mak- 
ing application   therefor. 

f  Iowa,  §  4354.  An  injunction  may  be 
obtained  as  an  independent  remedy  in 
an  action  by  equitable  proceedings,  in 
all  cases  where  such  relief  would  have 
been  granted  in  equity  previous  to  the 
adoption  of  the  code;  and  in  all  cases  of 
breach  of  contract  or  other  injury, 
where  the  party  injured  is  entitled  to 
maintain  and  has  brought  an  action  by 
ordinary  proceedings,  he  may,  in  the 
same  cause,  pray  and  have  a  writ  of  in- 
junction against  the  repetition  or  con- 
tinuance of  such  breach  of  contract  or 
other  injury,  or  the  commission  of  any 
breach  of  contract  or  injury  of  like  kind 
arising  out  of  the  same  contract  or  re- 
lating to  the  same  property  or  right, 
and  he  may  also,  in  the  same  action,  in- 
clude a  claim  for  damages  or  other  re- 
dress. 

g  Kansas,  §  5133.  When  it  appears  by 
the  petition  that  the  plaintiff  is  entitled 
to  the  relief  demanded,  and  such  relief 
or  any  part  thereof  consists  in  restrain- 
ing the  commission  or  continuance  of 
some  act,  the  commission  or  continuance 
of  which  during  the  litigation  would  pro- 
duce injury  to  the  plaintiff;  or  when 
during  the  litigation  it  appears  that  the 
defendant  is  doing  or  threatens  or  is 
about  to  do,  or  is  procuring  or  suffering 
to  be  done,  some  act  in  violation  of  the 
plaintiff's  rights  respecting  the  subject 
of  the  action,  and  tending  to  render  the 
judgment  ineffectual,  a  temporary  in- 
junction may  be  granted  to  restrain 
such  act.  And  when  during  the  pendency 
of  an  action  it  shall  appear  by  affidavit 
that  the  defendant  threatens  or  is  about 
to  remove  or  dispose  of  his  property 
with  intent  to  defraud  his  creditors,  or 
to  render  the  judgment  ineffectual,  a 
temporary  injunction  may  be  granted 
to  restrain  such  removal  or  disposition. 
It  may  also  be  granted  in  any  case 
where  it  is  specially  authorized  by  stat- 
ute. (Re-enacted,  Mch.  12,  1909,  Laws 
1909,    p.    329,   C.    C.    P.    §  250.) 

h  Minnesota,  §  4259.  When  it  appears 
by  the  complaint  that  the  plaintiff  is  en- 
titled to  the  relief  demanded,  and  such 
relief  consists  wholly  or  partly  in  re- 
straining the  commission  or  continuance 
of  some  act  which,  if  permitted  during 
the  litigation,  would  work  injury  to  the 


Oh.  CXXIIL] 


CODE  PROVISIONS. 


1657 


plaintiff,  or  when  during  the  litigation 
it  appears  that  the  defendant  is  about 
to  do,  or  is  doing,  or  threatening,  pro- 
curing, or  suffering  to  be  done,  some 
act  in  violation  of  plaintiff's  rights  re- 
specting the  subject  of  the  action,  and 
tending  to  make  the  judgment  ineffect- 
ual, a  temporary  injunction  may  be 
granted  to  restrain  such  act.  And 
where,  during  the  pendency  of  an  ac- 
tion, it  appears  by  affidavit  that  the  de- 
fendant threatens  or  is  about  to  remove 
or  dispose  of  his  property,  with  intent 
to  defraud  his  creditors,  a  temporary  in- 
junction may  be  granted  to  restrain 
such  removal  or  disposition. 

i  Missouri,  §  3630.  When  it  shall  ap- 
pear by  the  petition  that  the  plaintiff  is 
entitled  to  the  relief  demanded,  and 
such  relief,  or  anj  part  thereof,  consists 
in  restraining  the  commission  or  con- 
tinuance of  some  act  of  the  defendant, 
the  commission  or  continuance  of  which, 
during  the  litigation,  would  produce  in- 
jury to  the  plaintiff,  or  when,  during 
the  litigation,  it  shall  appear  that  the 
defendant  is  doing,  or  threatens,  or  is 
about  to  do  some  act  in  relation  to  the 
plaintiff's  rights  respecting  the  subject 
of  the  action,  and  tending  to  render  the 
judgment  ineffectual,  a  temporary  in- 
junction may  be  granted  to  restrain 
such   act. 

j  Montana,  §  6643,  substantially  same 
as  Idaho  §  42S8,  down  to  include  first  4 
subs.,  except  in  sub.  2,  after  "produce" 
in  fourth  line  omit  "waste;"  and  omit 
subs.   5  and  6  of  Idaho  statute. 

k  Nebraska,  §  6801,  substantially  same 
as  Kansas  §  5133,  except  near  the  end 
of  the  first  clause  after  "produce"  insert 
"great  or  irreparable"  before  "injury." 
Also  omit  entirely  the  second  sentence 
of  the  Kansas  statute. 

1  Nevada,  §  3207,  substantially  same  as 
Idaho  §  4288,  to  include  the  first  3  subs., 
except  omit  "waste"  after  "produce" 
near  end  of  sub.  2,  and  omit  ontirelv 
subs.  4,  5  and  6  of  the  Idaho  statute. 

m  North  Dakota,  §  6930,  substantially 
same  as  Kansas  §  5133,  except  in  the 
next  to  the  last  sentence,  after  "cred- 
itors" omit  the  clause  "or  to  render  the 
judgment  ineffectual";  also  omit  en- 
tirely the  last  sentence  of  the  Kansas 
statute. 

n  Oklahoma,  §  4425,  same  as  Kansas 
J  5133. 

o  Oregon,  §  420,  same  as  Alaska  C.  C. 
P.   *  386. 


p  South  Dakota,  C.  C.  P.  5 197.  same 
as  North  Dakota  §  6930.  (Re-enacted 
Feb.  26,  1907,  Sess.  Laws  1907,  pp.  165, 
185.) 

q  Texas,  Art.  2989.  Judges  of  the  dis- 
trict and  county  courts  shall,  either  in 
term  time  or  vacation,  hear  and  deter- 
mine all  applications  and  may  grant 
writs  of  injunctions  returnable  to  said 
courts  in  the  following  cases: 

(1)  "Where  it  shall  appear  that  tho 
party  applying  for  such  writ  is  entitled 
to  the  relief  demanded  and  such  relief 
or  any  part  thereof  requires  the  re- 
straint of  some  act  prejudicial  to  the 
applicant. 

(2)  Where,  pending  litigation,  it  shall 
be  made  to  appear  that  a  party  [is]  do- 
ing some  act  respecting  the  subject  of 
litigation,  or  threatens,  or  is  about  to  do 
some  act,  or  its  [is]  procuring  or  suffer- 
ing the  same  to  be  done  in  violation  of 
the  rights  of  the  applicant  which  act 
would  tend  to  render  judgment  inef- 
fectual. 

(3)  In  all  cases  where  the  applicant 
for  such  writ  may  show  himself  entitled 
thereto  under  the  principles  of  equity, 
and  as  provided  by  statutes  in  all  other 
acts  of  this  state  providing  for  the 
granting  of  injunctions,  or  where  a 
cloud  would  be  put  on  the  title  of  real 
estate  being  sold  under  an  execution 
against  a  person,  partnership  or  corpo- 
ration, having  no  interest  in  such  real 
estate  subject  to  the  execution  at  the 
time  of  the  sale,  or  irreparable  injury 
to  real  estate  or  personal  property  is 
threatened,  irrespective  of  any  legal 
remedy  at  law. 

Provided,  that  no  district  judge  shall 
have  the  power  to  grant  any  writ  of  in- 
junction returnable  to  any  other  court 
than  his  own,  unless  the  application  or 
petition  therefor  shall  state  that  the 
resident  judge,  that  is,  the  judge  in 
whose  district  the  suit  is,  or  is  to  be 
brought,  is  absent  from  his  district,  or 
is  sick  and  unable  to  hear  or  act  upon 
the  application,  or  is  inaccessible,  or 
unless  such  resident  judge  shall  have 
refused  to  hear  or  act  upon  such  appli- 
cation for  the  writ  of  injunction,  or  un- 
less such  judge  is  disqualified  to  hear 
or  act  upon  the  application;  and  the 
facts  of,  and  relating  to,  such  judge's 
absence,  or  sickness  and  inability,  or 
disqualification,  or  inaccessibility,  or  re- 
fusal to  act  must  be  fully  set  out  in  the 
application   for   the   writ,   or  in   an   afn- 


1658 


INJUNCTION. 


[Tit.  XV. 


davit     accompanying     said     application; 
and    in    case   of   such    absence,    or    sick- 
ness   and    inability  or   inaccessibility,    or 
disqualification,    of    the    resident    judge, 
or    in    case    of    his    refusal    to    hear,    or 
act    upon,    such    application,    no    district 
judge  shall  have  the  power  to  grant  the 
writ  when  the  application  therefor  shall 
have  once  been  acted  upon  by  a  district 
judge  of  the  state;  provided,   that  when 
the  judge   applied   to  shall  have  refused 
to  hear  or  act  upon  such  application,  he 
shall  endorse  thereon,  or  annex  thereto, 
his  refusal  to  hear  or  act  upon  such  ap- 
plication, together  with  his  reason  there- 
for;  provided,   that  nothing  herein  shall 
apply  to  the  granting  of  writs  of  injunc- 
tion by  non-resident  judges  to  stay  exe- 
cution or  to  restrain  foreclosures,   or  to 
restrain  sales  under  deeds  of  trust,  or  to 
restrain    trespasses,    or    to    restrain    the 
removal  of  property,  or  to  restrain  acts 
injurious    to,    or    impairing    riparian    or 
easement  rights  where  proof  is  made  to 
the     satisfaction    of    such    non-resident 
judge    that    it    is    impracticable    for    the 
applicant    to    reach    the    resident    judge 
and  procure  his  action  in  time  to  effect- 
uate the  purpose  of  the  application. 

A  resident  judge  shall  be  deemed  in- 
accessible, within  the  meaning  of  this 
act,  when  by  the  ordinary  and  avail- 
able means  and  modes  of  travel  and 
communication,  he  cannot  be  reached  in 
sufficient  time  to  effectuate  the  purpose 
of  the  writ  of  injunction  sought. 

Whenever  an  application  or  petition 
for  the  writ  of  injunction  shall  be  made 
to  a  non-resident  judge  upon  the  ground 
that  the  resident  judge  is  inaccessible  as 
hereinbefore  defined,  the  party  making 
such  application  or  his  attorney,  shall 
make  and  file  with  the  application,  as  a 
part  thereof  or  annexed  thereto,  an 
affidavit  setting  out  fully  the  facts 
showing  that  the  resident  judge  is  inac- 
cessible, and  the  efforts  made  by  the 
applicant  to  reach  and  communicate 
with  said  resident  judge,  and  the  re- 
sult of  said  efforts  in  that  behalf,  and 
unless  it  appears  from  said  affidavit 
that  the  applicant  has  made  a  fair  and 
reasonable  effort  to  procure  the  action 
of  the  resident  judge  upon  said  applica- 
tion, [no]  non-resident  judge  shall  have 
the  power  to  hear  said  application  upon 
the  ground  of  inaccessibility  of  the 
resident  judge;  and  should  any  non-resi- 
dent judge  hear  said  application  upon 
said    ground    of    inaccessibility    of    the 


resident  judge,  and  should  grant  the 
writ  of  injunction  prayed  for,  said  in- 
junction so  granted  shall  be  dissolved 
upon  its  being  shown  that  the  petitioner 
has  not  first  made  a  reasonable  effort 
to  procure  a  hearing  upon  said  ap- 
plication before  the  resident  judge. 
(Amended  Apr.  22,  1909;  General  Laws 
1909,   p.   354.) 

r  Utah,  §  3058,  substantially  same  as 
Idaho  §  4288,  down  to  include  first  3 
subs.,  except  in  sub.  2  omit  "waste" 
after  "produce"  in  fourth  line;  also  omit 
subs.  4,  5  and  6  of  Idaho  statute  and 
for   sub.    4    insert   the    following: 

4.  An  injunction  may  also  be  granted 
on  the  motion  of  the  defendant,  upon 
filing  an  answer  praying  for  affirmative 
relief  upon  any  of  the  grounds  men- 
tioned in  this  section,  subject  to  the 
rules  and  provisions  provided  for  the 
issuance  of  injunctions  on  behalf  of  the 
plaintiff. 

s  Washington,  §  719.  When  it  appears 
by  the  complaint  that  the  plaintiff  is 
entitled  to  the  relief  demanded  and  the 
relief,  or  any  part  thereof,  consists  in 
restraining  the  commission  or  continu- 
ance of  some  act  the  commission  or  con- 
tinuance of  which  during  the  litigation 
would  produce  great  injury  to  the  plaint- 
iff; or  when,  during  the  litigation,  it 
appears  that  the  defendant  is  doing,  or 
threatened  [threatens],  or  is  about  to 
do,  or  is  procuring,  or  is  suffering  some 
act  to  be  done,  in  violation  of  the  plaint- 
iff's rights  respecting  the  subject  of 
the  action,  tending  to  render  the  judg- 
ment ineffectual;  or  where  such  relief, 
or  any  part  thereof,  consists  in  restrain- 
ing proceedings  upon  any  final  order  or 
judgment,  an  injunction  may  be  granted 
to  restrain  such  act  or  proceedings  until 
the  further  order  of  the  court,  which 
may  afterwards  be  dissolved  or  modi- 
fied upon  motion.  And  where  it  ap- 
pears, in  the  complaint,  at  the  com- 
mencement of  the  action,  or  during  the 
pendency  thereof,  by  affidavit,  that  the 
defendant  threatens  or  is  about  to  re- 
move or  dispose  of  his  property  with 
intent  to  defraud  his  creditors,  a  tem- 
porary injunction  may  be  granted  to 
restrain  the  removal  or  disposition  of 
his   property. 

ti  Wisconsin,  §  2774,  substantially  sams 
as  North  Dakota   §  6930. 

t2  Wisconsin,   §  2775.     A  temporary  in- 
junction may  also  be  granted  on  the  ap» 


Ch.  CXXIII.]        COMPLAINTS    [OR    PETITIONS].— FORMS.  1659 

plication  of  the  defendant,  when  it  shall  sion  or  continuance  of  which,  during 
appear  that  the  plaintiff  is  doing,  or  the  litigation  would  produce  great  or 
threatens,  or  is  about  to  do,  or  is  pro-  irreparable  injury  to  the  plaii.tiff,  or 
curing  or  suffering  to  be  done  some  when,  during  the  litigation,  it  appears 
act  in  violation  of  the  defendant's  rights  that  the  defendant  is  doing,  or  threat- 
respecting  the  subject  of  the  action  and  ens  or  is  about  to  do,  or  is  procuring 
tending  to  his  injury  or  to  render  in-  or  suffering  to  be  done,  some  act  in 
effectual  such  judgment  as  may  be  ren-  violation  of  the  plaintiff's  rights,  re- 
dered  in  his  favor.  specting  the  subject  of  the  action,  and 
u  Wyoming,  §  4039.  When  it  appears  tending  to  render  the  judgment  in- 
by  the  petition  that  the  plaintiff  is  effectual,  a  temporary  order  may  be 
entitled  to  the  relief  demanded,  and  granted  restraining  such  act;  and  such 
such  relief,  or  any  part  thereof,  con-  order  may  also  be  granted  in  any  case 
sists  in  restraining  the  commission  or  where  it  is  specially  authorized  by  stat- 
continuance   of    some    act,    the    commis-  ute. 

§425.     COMPLAINTS  [OR  PETITIONS]. 
FORM    No.  1009 — For  injunction   against  waste. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  the  plaintiff  is  the  owner  in  fee-simple  of  the  premises 
[describing  them]. 

2.  That  the  defendant  is  in  possession  of  said  premises,  under  a 
Lease  from  the  plaintiff,  a  copy  of  which  is  hereto  annexed,  and  made 
part  hereof. 

3.  That  on  the  day  of  ,  19  ,  and  on  divers  other  days 
between  that  time  and  the  commencement  of  this  suit,  the  defendant 
wrongfully  [cut  down  and  carried  away  fruit  trees,,  and  tore 
down  and  destroyed  a  certain  building  constituting  part  of  said 
realty],  and  otherwise  suffered  and  committed  great  waste  on  the 
premises,  in  violation  of  the  terms  of  said  lease,  and  without  the 
consent  of  the  plaintiff. 

4.  That  the  defendant  is  about  to  and  will,  unless  restrained  by 
this  court,  commit  further  waste,  in  this  [state  what  he  threatens 
to  do]. 

Wherefore,  the  plaintiff  prays  judgment:  That  the  defendant  be 
restrained  by  injunction  from  committing  or  permitting  any  further 
waste  on  the  said  premises,  and  that  an  account  of  the  damage  done 
may  be  taken  and  judgment  therefor  be  awarded;  and  for  such 
other  relief  as  is  equitable. 

[Concluding  part.] 


166q  INJUNCTION.  [Tit.  XV. 

FORM   No.  1010 — To  restrain  negotiation  of  note. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
made  his  promissory  note  in  writing,  of  which  the  following  is  a 
copy:  [Copy  note]  ;  which  note  was  made  and  delivered  by  the 
plaintiff  to  L.  M.  without  consideration  and  for  his  accommodation, 
and  with  the  special  understanding  and  agreement  between  the 
plaintiff  and  said  L.  M.  that  [state  intended  application]. 

2.  That  said  note  was  thereafter  offered  by  said  L.  M.  to  the 
Bank  of  ,  which  refused  to  discount  the  same,  and  returned  it 
to  the  said  L.  M.,  whereupon  the  plaintiff  became  entitled  to  the  pos- 
session thereof.     [Or  state  the  facts  as  they  occurred.] 

3.  That  the  defendant  still  retains  said  note  in  his  possession,  and 
though  on  the  day  of  ,  19  ,  the  plaintiff  requested  him 
to  deliver  it  up,  he  then  refused,  and  has  ever  since  refused,  and 
now  refuses,  so  to  do. 

Wherefore,  the  plaintiff  prays  judgment :  That  the  defendant  be 
enjoined  from  negotiating,  transferring,  or  enforcing  said  note; 
that  it  be  given  up  and  canceled ;  and  for  the  costs  of  this  action. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  1011 — To  restrain  threatened  injury  to  an  invaluable  chattel. 
[Title  of  court  and  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  he  now  is,  and  at  the  times  hereinafter  mentioned  was, 
the  owner  of  [here  describe  the  chattel] . 

2.  That  on  the  day  of  ,  19  ,  he  deposited  said  [chat- 
tel]  for  safe-keeping  with  the  defendant,  and  on  the  day  of 

19     ,  demanded  the  same  from  the  defendant,  offering  to 
pay  all  reasonable  charges  for  its  storage. 

3.  That  the  defendant  refuses  to  deliver  the  same  to  the  plaintiff, 
and  threatens  to  conceal,  dispose  of,  or  injure  the  same,  if  required 
to  deliver  it  up. 

4.  That  no  pecuniary  damages  would  be  an  adequate  compensa- 
tion to  the  plaintiff  for  the  loss  of  the  said  [chattel]. 


Ch.  CXXIII.]        COMPLAINTS    [OR    PETITIONS].— FORMS.  1661 

Wherefore,  the  plaintiff  prays  judgment  that  the  defendant  be 
restrained  by  injunction  from  disposing  of,  injuring,  or  concealing 
the  said  [chattel]. 

[Etc.] 

FORM   No.  1012 — To  enjoin  obstruction  maintained  by  a  railroad  corporation 
along  a  public  highway. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  the  defendant  during  the  times  hereinafter  mentioned 
was,  and  it  now  is,  a  corporation  organized  under  the  laws  of  the 
state  of 

2.  That  plaintiff  was  on  the  day  of  ,  19  ,  and  ever 
since  has  been,  the  owner  and  in  possession  of  the  following- 
described  lot,  in  the  city  of  ,  county  of  ,  state  of  : 
[Here  describe]  ;  that  the  said  lot  fronts  on  Street,  a  public 
highway  in  said  city,  which  street,  before  the  grievances  herein- 
after complained  of,  afforded  unobstructed  means  of  ingress  to  and 
egress  from  said  lot. 

3.  That  on  the  day  of  ,  19  ,  the  defendant,  without 
any  right  whatever,  constructed  or  caused  to  be  placed  upon  and 
along  said  Street,  and  in  front  of  said  lot  of  plaintiff,  em- 
bankments, excavations,  railroad  tracks,  and  other  obstructions  to 
the  free  and  necessary  use  of  said  street,  and  maintained,  and  ever 
since  maintains  and  operates,  over  and  upon  the  entire  length  of 
said  street,  and  has  continuously  ever  since  the  date  aforesaid 
maintained  upon  and  along  said  public  highway  said  embankments, 
excavations,  railroad  tracks,  and  all  other  of  said  obstructions,  and 
has  run  and  still  runs  its  locomotives  and  trains  of  cars  over  and 
upon  said  tracks,  and  thereby  interferes  materially  with  the  right  of 
plaintiff  to  the  ingress  to  and  egress  from  his  said  lot  over,  along, 
and  upon  said  street;  that  defendant  has  by  its  acts  aforesaid, 
diminished  the  value  of  plaintiff's  lot  in  the  sum  of  $  ,  to 
plaintiff's  damage  in  the  sum  of  $ 

Wherefore,  plaintiff  prays  judgment  against  defendant  for  the 
sum  of  $  ,  and  plaintiff's  costs  of  this  action;  that  said  obstruc- 

tions and  all  thereof  be  abated;  and  that  the  defendant  be  enjoined 
from  further  maintaining  the  same,  or  any  obstructions,  upon  or' 
along  said  street.  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 


1662  INJUNCTION.  [Tit.  XV. 

FORM   No.  1013 — To  enjoin  claimants  from  asserting  or  claiming,  except  in 
this  action,  under  certain  alleged  mechanics'  liens. 

(In  Hoffman-Marks  Co.  v.  Spires,  154  Cal.  Ill ;  97  Pac.  152.) 
[Title  of  court  and  cause.] 
Plaintiff  complains  of  defendants,  and  alleges : 

1.  That  the  following-named  defendants  are,  and  at  all  the  times 
herein  mentioned  were,  partnerships,  to  wit :  [Here  follow  names  of 
defendants  alleged  to  be  partnerships.] 

2.  That  the  following-named  defendants  are,  and  at  all  times 
herein  mentioned  were,  corporations  duly  organized  and  existing 
under  the  laws  of  the  state  of  California,  to  wit :  [Here  follow  names 
of  defendants  alleged  to  be  corporations.] 

3.  That  on  or  about  the  6th  day  of  September,  1904,  the  defendant 
McKown  &  Co.  agreed  and  entered  into  a  contract  with  plaintiff  to 
build  and  to  furnish  the  material  and  labor  necessary  to  build  a  house 
for  her  for  residence  purposes,  on  lots  [here  described],  for  the  con- 
tract price  or  sum  of  $8,183 ;  that  plaintiff  was  on  September  6,  1904. 
ever  since  has  been,  and  now  is,  the  owner  in  fee,  and  as  her  separate 
property,  of  said  lots. 

4.  5.  [Here  follow  averments  as  to  the  terms  of  said  contract ;  as 
to  work  done,  labor  and  materials  furnished  thereunder,  and  pay- 
ments made  thereon ;  as  to  abandonment  of  the  contract  by  the 
defendant  contractors  before  completion  of  the  building,  and  com- 
pletion of  the  work  by  the  plaintiff  under  other  contracts  thereupon 
made.]  *  *  *  That,  in  addition  to  the  $3,682.35  paid  to  said 
McKown  &  Co.  as  aforesaid,  plaintiff  was  obliged  to  and  did  pay  for 
the  material  and  labor  actually  and  necessarily  used  in  completing 
said  house,  as  above  alleged,  the  further  sum  of  $7,581.79,  or  $3,081.14 
more  than  the  whole  contract  price  thereof,  and  said  $7,581.79  was 
the  fair  and  reasonable  cost  and  expenses  of  the  completion  of  said 
house;  that  on  said  29th  day  of  September,  1904,  the  value  of  the 
work  and  materials  already  done  and  furnished,  including  materials 
delivered  or  on  the  ground,  estimated  as  near  as  may  be  by  the 
standard  of  the  whole  contract  price,  was  less  than  the  sum  of  said 
three  payments,  aggregating  the  sum  of  $3,682.35. 

6.  That  each  and  every  of  the  defendants  herein  other  than  said 
McKown  &  Co.  claim,  or  are  assignees  of  persons  who  claim,  to  have 
furnished  materials  or  labor,  or  both,  to  be  used,  and  which  they 
assert  actually  were  used,  by  said  firm  in  the  construction  of  said 


€h.  CXXIII.]  ORDERS,    DECREES,    ETC.— FORMS.  16(j:J 

house  prior  to  its  abandonment  of  the  building  thereof,  and  claim 
that  the  said  firm  of  McKown  &  Co.  is  indebted  to  them  for  and  on 
.account  thereof,  and  are  asserting  that  they  have,  or  are  entitled  to 
have,  liens  upon  said  house  and  lots  for  the  value  of  the  same;  but 
plaintiff  is  unable  to  state  whether  the  demands -of  all  or  any  of  said 
parties  are  just,  or  are  the  precise  amounts  due  to  them  respectively 
from  said  McKown  &  Co.  on  account  of  such  labor  and  materials. 
;Some  of  said  defendants  have  served  written  notice  on  plaintiff  that 
said  firm  of  McKown  &  Co.  was  indebted  to  them  for  work  or  labor 
•done  in  performance  of  said  contract,  and  have  notified  plaintiff  to 
withhold  moneys  sufficient  to  pay  their  demands,  and  other  defend- 
ants have  filed  notice  with  the  recorder  of  such  Los  Angeles  County, 
claiming  liens  on  said  property  under  part  III,  title  IV,  chapter  II, 
of  the  Code  of  Civil  Procedure,  and  still  others  of  them  are  threaten- 
ing to  do  so ;  and  plaintiff  alleges  that  unless  restrained,  defendants 
will  bring  separate  actions  against  her  to  assert  their  said  claims,  and 
she  will  be  harassed  and  put  to  great  and  needless  expense  in  defend- 
ing said  actions. 

Wherefore,  plaintiff  prays:  That  each  and  every  of  the  defend- 
ants herein  be  perpetually  enjoined  from  filing  or  in  any  way  assert- 
ing claims  or  liens  of  any  kind  against  said  property  or  any  part 
thereof,  except  in  this  action ;  that  those  of  them  who  have  already 
commenced  separate  actions  against  plaintiff  be  enjoined  from  mak- 
ing any  further  efforts  towards  enforcing  said  claims  in  said  actions; 
that  the  same  be  declared  without  foundation ;  that  it  be  adjudged 
that  plaintiff  is  not  indebted  to  said  McKown  &  Co.  on  account  of 
said  contract  or  at  all,  and  that  there  is  no  fund  in  plaintiff's  hands 
for  the  payment  of  laborers  or  materialmen;  and  for  costs  and  all 
other  proper  relief. 

John  D.  Pope,  and 
Charles  Wellborn, 
[Verification.]  Attorneys  for  plaintiff. 

§426.     ORDERS,   DECREES,   ETC. 

FORM   No.  1014 — Order  to  show  cause,  and  interlocutory  injunction. 
(In  More  v.  Calkins,  85  Cal.  177;  24  Pac.  729.) 

[Title  of  court  and  cause.] 

The  plaintiff  in  the  above-entitled  cause,  having  commenced  an 
action  in  the  superior  court  of  the  county  of  Ventura,  state  of  Cali- 


16G4  INJUNCTION.  [Tit.  XV. 

forma,  against  the  defendant,  and  having  prayed  for  an  injunction 
against  the  defendant,  requiring  him  to  refrain  from  certain  acts  in 
said  complaint  and  hereinafter  more  particularly  mentioned : 

Now,  on  reading  the  complaint  in  said  action,  duly  verified  by  the 
oath  of  the  plaintiff,  and  it  satisfactorily  appearing  to  me  therefrom 
that  there  are  sufficient  grounds  for  granting  an  order  to  show  cause 
why  an  injunction  should  not  be  granted ; 

It  is  therefore  ordered,  that  the  defendant,  J.  "W.  Calkins,  appear 
before  me  at  the  courthouse  in  San  Buena  Ventura,  on  Wednesday, 
the  24th  day  of  the  present  month,  at  11  o'clock  A.  M.  of  that  day, 
to  show  cause,  if  any  he  has,  why  he  should  not  be  perpetually 
enjoined  and  restrained  from  selling  at  public  auction  or  private 
sale,  or  in  any  manner  disposing  of  the  said  several  tracts  of  land 
described  in  the  said  complaint,  or  any  or  either  of  them,  or  the 
water-rights  appurtenant  thereto ; 

It  is  further  ordered,  that  the  defendant,  J.  W.  Calkins,  his  serv- 
ants, agents,  solicitors,  attorneys,  and  all  others  acting  in  aid  or 
assistance  of  the  defendant,  do  absolutely  desist  and  refrain  from 
selling  the  said  tracts  of  land  in  said  complaint  described,  and  the 
water-rights  appurtenant  to  the  said  tracts,  or  any  or  either  of  said 
tracts  or  water-rights,  at  public  or  private  sale,  or  in  any  manner 
disposing  of  the  said  tracts  and  water-rights,  or  either  of  them,  until 
the  further  order  of  the  court  herein. 

Done  this  10th  day  of  April,  1889. 

B.  T.  Williams,  Judge. 

FORM   No.  1015 — Temporary  injunction  pendente  lite,  conditioned  on  giving 
of  bond  by  the  plaintiff. 
(In  Severns  v.  English  (Okla.),  101  Pac.  750,  751.) 

[Title  of  court  and  cause.] 

The  above-entitled  cause  comes  on  to  be  heard  before  the  under- 
signed, judge  of  the  district  court  in  and  for  the  aforesaid  county 
and  territory,  at  my  chambers  at  Hobart,  Oklahoma,  on  motion  and 
affidavit  of  the  plaintiff  as  receiver,  for  an  order  directing,  command- 
ing, and  ordering  J.  0.  Severns,  defendant,  to  deliver  and  turn  over 
to  F.  M.  English,  receiver,  one  certain  Buckeye  ditcher,  now  being 
used  and  operated  by  said  defendant  in  excavating  the  trenches  for 
the  Lawton  sewer  system,  in  the  city  of  Lawton,  Comanche  County, 
Oklahoma;  and  further  praying  that  said  J.  O.  Severns,  his  agents, 


Ch.  CXXI1L]  ORDERS,    DECREES,   ETC.— FORMS.  1665 

servants,  and  employees,  be  restrained  from  further  using,  managing, 
or  operating  the  aforesaid  Buckeye  ditcher : 

It  is  therefore  by  the  court,  after  being  duly  advised  in  the  prem- 
ises, ordered,  adjudged,  and  decreed,  that  the  said  J.  0.  Severns  do 
forthwith  deliver  and  turn  over  to  the  said  F.  M.  English,  receiver, 
the  aforesaid  Buckeye  ditcher,  now  being  used,  operated,  and  con- 
trolled by  said  Severns,  his  agents,  servants,  and  employees,  and  he 
is  hereby  directed  and  ordered  by  the  court  to  deliver  the  aforesaid 
Buckeye  ditcher  to  the  aforesaid  F.  M.  English,  receiver. 

It  is  further  ordered,  adjudged,  and  directed  by  the  court,  that  the 
said  J.  O.  Severns,  his  agents,  employees,  and  all  persons  acting  for 
him  during  the  pendency  of  this  action,  be  and  they  are  each  and  all 
of  them  hereby  restrained  from  any  and  all  further  use  and  manage- 
ment of  the  said  Buckeye  ditcher;  this  order  and  injunction  to  be 
and  remain  in  full  force  and  effect  from  the  time  of  its  signing  until 
such  time  as  J.  0.  Severns  shall  make,  execute,  and  deliver  to  George 
W.  Broe  a  good  and  sufficient  bond  in  the  sum  of  $5,000,  the  same  to 
be  approved  by  the  clerk  of  the  district  court  of  Comanche  County, 
Oklahoma,  and  conditioned  and  in  compliance  with  a  certain  order 
made  by  this  court  in  the  case  of  George  "W.  Broe,  plaintiff,  versus 
J.  R.  Hale,  defendant,  pending  in  the  district  court  of  Comanche 
County,  Oklahoma,  wherein  this  plaintiff,  F.  M.  English,  was  ap- 
pointed as  a  receiver  to  take  charge  of  and  control  and  manage  the 
aforesaid  Buckeye  ditcher  under  the  direction  and  control  of  the 
court.  Said  bond  shall  be  conditioned  to  pay  the  judgment  rendered 
in  favor  of  George  W.  Broe  versus  John  R.  Hale  as  aforesaid,  in  the 
aforesaid  cause.  The  order  of  injunction  herein  to  be  in  force  only 
after  giving  a  good  and  sufficient  bond  in  the  sum  of  $2,500  by 
plaintiff  to  defendant,  conditioned  that  plaintiff  will  pay  defendant 
any  damages  sustained  if  it  be  finally  determined  that  the  order  of 
injunction  herein  is  wrongfully  granted. 

Done  at  Hobart,  Kiowa  County,  Oklahoma,  on  this  12th  day  of 
April,  1905.  F.  E.  Gillette, 

Judge  of  the  District  Court. 

[Endorsed :]     Filed  April  12,  1905. 

N.  E.  Sisson,  Clerk. 
By  L.  S.  Eckles,  Deputy. 


J  666  INJUNCTION.  [Tit.  XV. 

FORM   No.  1016 — Injunction  pendente  lite  to  restrain  continuance  of  trespass. 

(In  Rohrer  v.  Babcock,  114  Cal.  124;  45  Pac.  1054;  126  Cal.  222;  5& 

Pac.  537.  y 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  California  to  A.  L.  Babcock,  greeting : 

The  plaintiff  having  filed  her  complaint  in  the  superior  court  of  the 
county  of  Siskiyou  against  the  defendant,  praying  for  an  injunction 
against  the  defendant,  requiring  him  to  refrain  from  certain  acts  in 
said  complaint  and  hereinafter  more  particularly  mentioned.  On 
reading  the  said  complaint  in  this  action,  duly  verified,  and  it  satis- 
factorily appearing  to  the  said  court  therefrom  that  it  is  a  proper 
case  for  an  injunction,  and  that  sufficient  grounds  exist  therefor,  and 
the  necessary  and  proper  undertaking  having  been  given : 

We,  therefore,  in  consideration  thereof,  and  of  the  particular  mat- 
ters of  the  said  complaint  set  forth,  do  strictly  command  you,  and 
each  and  all  of  you,  that  until  the  further  order  of  said  court  you  and 
each  of  you,  your  and  each  of  your  servants,  agents,  attorneys,  em- 
ployees, and  all  persons  acting  under  the  control,  authority,  or  direc- 
tion of  you  or  either  of  you,  do  absolutely  refrain  from  and  desist 
from  removing  or  molesting  pending  judgment  in  this  action  any  of 
the  hay  contained  in  those  two  certain  haystacks  stacked  near  the 
center  of  the  lower  stockyards  of  the  "Home  Ranch"  of  John  B. 
Rohrer,  deceased,  in  said  county  and  state,  containing  about  fifty 
tons  of  hay,  and  being  those  two  stacks  of  hay  which  were  set  apart 
as  plaintiff's  portion  of  the  hay  raised  on  the  said  "Home  Ranch"' 
during  the  year  1895. 

Witness  the  Hon.  J.  S.  Beard,  judge  of  the  superior  court  at 
Yreka,  in  the  county  of  Siskiyou,  and  the  seal  of  the  said  court,  this. 
5th  day  of  December,  1895. 

[Seal.]  Allen  Newton,  Clerk. 

FORM   No.  1017 — Undertaking  on  injunction. 

[Title  of  court  and  cause.] 

Whereas,  the  above-named  plaintiff  has  commenced,  or  is  about  to 
commence,  an  action  in  the  superior  court  of  the  county  of  , 

state  of  ,  against  the  above-named  defendant,  and  he  is  about 

to  apply  for  an  injunction  in  said  action  against  the  defendant,. 

l  For  the  complaint  in  this  action,  see  ch.  LXXI,  form  No.  521. 


Ch.  CXXIILJ  ORDERS,    DECREES,    ETC.— FORMS.  1667 

enjoining  and  restraining  the  defendant  from  the  commission  of  cer- 
tain acts,  as  in  the  complaint  filed  in  the  said  action  are  more  par- 
ticularly set  forth  and  described  : 

Now,  therefore,  we,  the  undersigned,  residents  of  the  county  of 
in  consideration  of  the  premises,  and  of  the  issuing  of  said 
injunction,  do  jointly  and  severally  undertake  in  the  sum  of  $  , 

and  promise  to  the  effect  that  in  case  said  injunction  shall  issue  the 
plaintiff  will  pay  to  the  said  party  enjoined  such  damages,  not 
exceeding  the  sum  of  $  ,  as  such  party  may  sustain  by  reason 

of  the  injunction,  if  the  said  superior  court  shall  finally  decide  that 
the  plaintiff  was  not  entitled  thereto. 
Dated  this  day  of  ,  19     . 

[Signature  of  surety.]      [Seal.] 
[Signature  of  surety.]      [Seal.] 

[Justification  of  sureties  as  in  ch.  CXXIV,  form  No.  1028,  and  filing 
endorsement.] 

V 

FORM    No.   1018 — Order  granting  motion  dissolving  injunction. 

(In  Long  v.  Newman,  10  Cal.  App.  430 ;  102  Pac.  534.) 

[Title  of  court  and  cause.] 

Present,  J.  M.  Seawell,  Judge,  and  officers  of  the  court : 

In  this  cause  the  motion  of  the  defendant  for  an  order  to  dissolve 
the  temporary  injunction  issued  herein  came  on  regularly  this  day  to 
be  heard :  Whereupon,  after  argument  by  counsel  for  the  respective 
parties  herein,  it  is  ordered,  that  said  motion  be  and  the  same  is 
hereby  granted  [and  said  injunction  is  hereby  dissolved]. 

[Date.]  [Signature  of  clerk.] 

FORM   No.  1019 — Order  dissolving  or  modifying  injunction. 

[Title  of  court  and  cause.] 

It  appearing  to  the  court,  upon  due  notice  given  to  the  plaintiff  of 
a  motion  to  dissolve  [or  to  modify]  the  injunction  heretofore  granted 
in  this  action,  that  there  is  not  legal  or  sufficient  ground  for  said 
injunction  [or  that  said  injunction  should  be  modified],  for  the  fol- 
lowing reasons,  to  wit:    [Here  state  the  same  briefly.] 

*It  is  therefore  ordered,  that  said  injunction  be  and  the  same  is 
hereby  dissolved. 


1668  INJUNCTION.  [Tit.  XV. 

[In  case  of  motion  to  modify,  beginning  with  the  star  (*),  con- 
clude as  follows:  "It  is  ordered,  that  said  injunction  be  and  the 
same  is  hereby  modified"  (stating  in  what  respect  the  same  is  modi- 
fied).] 

[Date.]  S.  T.,  Judge. 

FORM  No.  1020 — Judgment  for  defendant  dissolving  temporary  Injunction, 
etc.,  in  action  to  restrain  a  church  society  from  convert- 
ing church  property,  misdirecting  its  use,  etc. 

(In  Cumberland  Permanent  Committee  of  Missions  v.  Pacific  Synod 
of  Presbyterian  Church  (Cal.),  106  Pac.  395.) 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  for  trial,  upon  notice  duly  given, 
before  department  two  of  the  above-entitled  court,  Hon.  M.  H. 
Hyland  presiding,  without  a  jury,  a  jury  trial  having  been  expressly 
waived  by  all  parties,  the  plaintiff  being  represented  by  its  attorneys, 
Thomas  E.  Clark  and  II.  L.  Partridge,  and  the  defendants  being  rep- 
resented by  their  attorneys,  W.  N.  Rutherford,  W.  A.  Beasly,  and  H. 
Ray  Fry,  and  oral  and  documentary  evidence  having  been  introduced 
by  all  the  parties,  and  the  cause  having  been  argued  and  submitted 
for  decision  on  briefs  filed  by  all  the  parties  hereto,  and  the  court 
being  fully  advised  in  the  premises,  and  having  filed  its  findings  of 
fact  and  conclusions  of  law;  now,  therefore,  in  accordance  with  said 
findings  and  conclusions,  it  is  hereby 

Ordered,  adjudged,  and  decreed,  that  plaintiff  take  nothing  by 
reason  of  its  said  complaint,  and  that  defendants  have  judgment 
against  the  plaintiff  dissolving  the  restraining  order  or  temporary 
injunction  heretofore  issued  in  this  action,  and  for  their  costs. 

Dated  October  11,  1907.  M.  H.  Hyland, 

Judge  of  the  Superior  Court. 

For  count  in  complaint  for  damages  joined  with  count  praying  for  injunction  to 
restrain  unlawful  diversion  of  the  waters  of  a  river,  see  ch.  LXXXII,  form  No.  592. 

For  allegation  as  to  acts  of  defendant  causing  irreparable  damage  and  injury  to 
the  plaintiff,  see  ch.  LXXXII,  paragraph  22,  form  No.  592. 

Form  of  petition  for  an  injunction  against  the  defendants  seeking  to  restrain  the 
enforcement  of  a  judgment:    Little  v.  Evans,  41  Kan.  578,  21  Pac.  630. 

Form  of  petition  in  an  action  to  enjoin  defendant  from  using  materials  injurious 
to  plaintiff's  crops,  and  for  damages:  Fogarty  v.  Junction  City  Pressed  Brick  Co., 
50  Kan.  482,   31  Pac.  1052,   18  L.  R.   A.   756. 

Form  of  petition  in  an  action  in  equity  to  enjoin  and  restrain  defendant  from 
changing  the  grade  of  streets  and  an  alley,  in  pursuance  of  its  ordinances,  until  th« 


Ch.  CXXIII.]  ANNOTATIONS,  ETC.  1GG9 

damage  sustained  by  plaintiff  to  its  property  by  reason  thereof  is  adjusted:  Mac- 
Murray-Judge  Architectural  Iron  Co.  v.  City  of  St.  Louis,  138  Mo.  608,  39  S.  W.  467. 

Form  of  petition  in  an  action  to  restrain  the  sale  of  property  for  alleged  illegal 
taxes  upon  personal  property:  Bartlett  v.  Atchison,  T.  &  S.  F.  R.  Co.,  32  Kan.  134, 
4  Pac.   178. 

Form  of  petition  for  an  Injunction,  and  for  damages  against  defendant  for  dig- 
ging up  trees,  injuring  buildings,  etc.,  on  plaintiff's  premises:  Johns  v.  Schmidt, 
82  Kan.  383,  4  Pac.  872. 

Form  of  petition  filed  by  an  attorney-general  seeking  an  injunction  restraining 
the  unlawful  sale  of  liquor:    Koester  v.  State,  36  Kan.  27,  12  Pac.  339. 

Form  of  complaint  in  an  action  by  the  owner  of  a  sawmill  to  abate  obstructions 
in  a  stream  which  delay  its  logs  in  floating  down  the  stream,  and  for  damages; 
The  A.  C.  Conn  Co.  v.  Little  Suamico  Lumber  etc.  Co.,  55  Wis.  580,  13  N.  W.  464. 

Form  of  complaint  for  an  injunction  to  restrain  or  prevent  the  flooding  of  plaint- 
iff's property  by  water  from  defendant's  reservoir:  Sylvester  v.  Jerome,  19  Colo. 
128,  34  Pac.  760. 

Form  of  complaint  for  an  injunction  by  a  corporation  plaintiff,  in  aid  of  trie 
preservation  of  certain  personal  property  upon  which  plaintiff  holds  a  chattel 
mortgage:     Bank  of  Ukiah  v.  Moore,   106  Cal.  673,  39  Pac.   1071. 

Form  of  complaint  for  an  injunction  to  restrain  the  husband  from  interfering 
with  the  wife's  separate  property:  Woffenden  v.  Woffenden,  1  Ariz.  328,  331,  25 
Pac.  666. 

For  substance  of  complaint  in  an  action  to  enjoin  maintenance  of  a  dam  which, 
by  reason  of  overflows,  etc.,  causes  injury  to  the  plaintiff,  and  for  damages,  etc., 
see  Wilhite  v.  Billings  etc.  Co.,  39  Mont.  1,  101  Pac.  168. 

Form  of  demurrer  in  a  proceeding  for  an  injunction  to  prevent  the  sale  of  a 
homestead:    Pierson  v.  Truax,  15  Colo.  224,  25  Pac.  183,  184. 

Form  of  answer  in  an  action  in  equity  to  enjoin  the  directors  of  a  levee  district 
from  proceeding  under  chapter  101  of  the  Revised  Statutes  (Mo.)  to  construct  a 
levee  in  said  district:    Morrison  v.  Morey,  146  Mo.  553,  48  S.  W.  629,  631. 

Form  of  undertaking  on  injunction  in  an  action  upon  an  injunction  bond: 
Sherman  v.  County  Commissioners,  9  Colo.  App.   155,   47  Pac.   973. 

Form  of  decree  in  an  action  to  enjoin  maintenance  of  dam:  Paragoonah  Field  etc. 
Co.  v.  Edwards,  9  Utah  477,  35  Pac.  487,  488. 

For  the  substance  of  forms  in  a  proceeding  to  restrain  a  resident  of  the  state  of 
Colorado  from  prosecuting  a  personal  action  instituted  by  him  in  the  courts  of  an- 
other state  against  a  citizen  of  his  own  state,  but  at  all  times  residing  in  Colorado, 
and  where  the  matters  attempted  to  be  litigated  have  theretofore  been  adjudicated 
and  settled  in  and  by  the  courts  of  Colorado,  see  O'Haire  v.  Burns,  45  Colo.  432,  101 
Pac.  755,  132  Am.  St.  Rep.  191,  25  L.  R.  A.  (N.  S.)  267. 

Action  to  enjoin  defendant  city  from  enforcing  certain  ordinances  which  prohibit 
the  use  of  sidewalk  space  in  the  city  for  the  sale  of  fruits,  books,  or  other  merchan- 
dise, and  the  erection  or  maintenance  upon  such  sidewalks  of  any  booth,  shed, 
stand,  or  other  construction.  Case  submitted  upon  stipulation  of  facts  set  out  at 
length  in  the  decision:    Chapman  v.  City  of  Lincoln,  84  Neb.  534,  121  N.  W.  596-599. 


§427.     ANNOTATIONS.— Injunction. 

1.  Nature  of  remedy. 
2,  3.  Rights  protected  by  statute  not  abridged. 
4,  5.  "Plain,  speedy,  and  adequate  remedy  at  law"  precludes  Injunction. 

6.  Where  the  remedy  is  by  action  of  ejectment. 
7-9.  Remedy  as  against  party  not  a  trespasser. 
10.  When  injunction  will  not  lie. — Absence  of  substantial  injury. 
Jury's  PI.— 106. 


1670 


INJUNCTION. 


[Tit  XV. 


11.  Rival  claimants  to  public  office. 

12.  Mandatory  injunctions  not  favored. 

13.  Restraining  order  in  equity  should  be  definite  and  certain. 

14.  Petition  for  injunction,  when  sufficient. 

15-17.  Discretion  of  court. — Granting  a  temporary  injunction  pendente  lite. 

18.  California  rule. 

19.  Dissolving  temporary  injunction. — Rule. 

20.  Exception  to  the  rule. 

21.  Motion  to  dissolve   injunction. 

22.  Dissolving  injunction  upon  appeal. 

23.  Decision  on  merits  not  permitted  on  motion  to  dissolve. 

24.  Temporary  writ  of  injunction  improvidently  issued. 


1.  Nature  of  remedy. — An  Injunction 
Is  an  extraordinary  remedy,  and  does 
not  follow  as  of  right,  even  when  a  case 
of  wrongful  act  is  made  out  on  one  side 
and  consequent  injury  on  the  other. 
The  court  will  always  consider  whether 
it  will  not  do  a  greater  injury  by  en- 
joining an  act  than  would  result  from 
permitting  the  act  to  continue  and  leav- 
ing the  party  injured  to  his  remedy  in 
damages  at  the  hands  of  a  jury:  Ferry- 
Leary  L.  Co.  v.  Holt  &  Jeffery,  53  Wash. 
584,  102  Pac.  445,  446. 

2.  Rights  protected  by  statute  not 
abridged. — Courts  of  equity  do  not  have 
jurisdiction  to  abridge  rights  which  are 
specially  protected  under  the  statute, 
nor  to  ignore  the  limitations  imposed 
upon  the  exercise  of  such  remedies.  It 
has  therefore  been  held  that  the  plaint- 
iff should  not  be  granted  an  injunction 
in  equity  where  this  remedy,  if  effected, 
would  deprive  the  defendant  of  his  pos- 
session without  the  statutory  notice 
guaranteed  him  under  the  statute:  Hall 
v.  Henninger  (Iowa),  121  N.  W.  6,  8. 

3.  Equity  will  not  interfere  by  in- 
junction, unless  the  threatened  wrong  is 
substantial  and  irreparable  in  damages: 
Tifft  v.  State  Medical  Inst.,  53  Wash. 
365,   101  Pac.   1081,   10S2. 

4.  "Plain,  speedy,  and  adequate  rem- 
edy at  law"  precludes  injunction. — It  is 
a  rule  in  equity  peculiarly  applicable  to 
actions  in  which  injunctions  are  sought 
that  such  relief  will  not  be  granted 
where  there  is  a  plain,  speedy,  and  ade- 
quate remedy  at  law:  Hall  v.  Henninger 
(Iowa),  121  N.  W.  6,  8;  Forbes  v.  Carl, 
125  Iowa  317,  101  N.  W.  100;  Home  S.  & 
T.  Co.  v.  Hicks,  116  Iowa  114,  89  N.  W. 
103;  Ewing  v.  Webster  City,  103  Iowa 
226,  72  N.  W.  511:  Waterloo  v.  Waterloo 
St.   R.   Co.,   71  Iowa  193,  32  N.  W.  329. 

5.  Under   the   Iowa   statute,    it   is    well 


settled  that  where  the  relief  asked  Is 
such  relief  as  equity  only  can  grant,  the 
plaintiff's  action  will  be  dismissed  if  the 
facts  are  not  such  as  to  entitle  him  to- 
that  relief,  although  he  might  have  a 
remedy  in  a  proper  action  at  law:  Hall 
v.  Henninger  (Iowa),  121  N.  W.  6,  10; 
Cooper  v.  Cedar  Rapids,  112  Iowa  367, 
83  N.  W.  1050;  Kelly  v.  Andrews,  94 
Iowa  4S4,  62  N.  W.  853;  Hartwig  v.  lies, 
131  Iowa  501,  109  N.  W.  18. 

6.  Where  the  remedy  is  by  action  of 
ejectment,  it  is  not  the  province  of  a. 
court  of  equity,  by  decree  in  a  proceed- 
ing for  an  injunction  to  attempt  to  dis- 
turb the  possession  of  defendants  where 
such  possession  is  actual,  open,  and  no- 
torious, and  had  been  such  for  a  long 
time  prior  to  the  commencement  of  the 
proceedings  in  equity:  Waddingham  v. 
Robledo,  6  N.  Mex.  347,  28  Pac.  663, 
672. 

7.  Remedy  as  against  party  not  a  tres- 
passer.— Where  the  defendant  is  not  a 
trespasser,  but  is  in  the  actual  and  con- 
tinued possession  of  the  real  property 
in  controversy,  plaintiff  misconceives  his 
remedy  where  he  applies  for  an  injunc- 
tion. In  such  a  case  the  plaintiff  should 
bring  an  action  at  law  to  recover  pos- 
session: Hall  v.  Henninger  (Iowa),  121 
N.  W.  6,  10,  (Weaver,  J.,  and  Evans, 
C.  J.,  dissenting,  and  holding  that  the 
facts  in  this  case  disclosed  that  defend- 
ant was  a  trespasser  and  that  a  decree 
for  a  permanent  injunction  should 
stand). 

S.  Injunction  lies  to  restrain  a  board 
of  supervisors  from  passing  ordinances 
working  an  irreparable  injury:  Spring 
Valley  Water  Works  v.  Bartlett,  16  Fed 
615,   8   Sawy.   555. 

9.  Injunction  will  be  granted  at  suit 
of  stockholder  to  restrain  unauthorized 
action    of   exchange    where    the    same    ifc 


Ch.  CXXIII.] 


ANNOTATIONS. 


1671 


prejudicial  to  his  rights  as  a  stock- 
holder: Kolff.  v.  St.  Paul  Fuel  Ex.,  48 
Minn.  215,  60  N.  W.  1036. 

10.  When  Injunction  will  not  lie. — Ab- 
sence of  substantial  injury. — Injunction 
will  not  lie  at  the  instance  of  one  board 
of  trade  against  another  to  restrain  the 
unlawful  exercise  of  power  where 
former  has  suffered  no  particular  and 
substantial  injury:  Jones  v.  Board  of 
Trade,  52  Kan.  95,  34  Pac.  453. 

11.  Rival  claimants  to  public  office. — 
Injunction  is  not  the  proper  remedy  to 
determine  the  rights  of  rival  claimants 
to  the  possession  of  a  public  elective  of- 
fice: Hotchkiss  v.  Keck,  84  Neb.  545, 
121  N.  W.  579,  580. 

12.  While  mandatory  injunctions  are 
not  favored  by  the  courts,  they  are  nev- 
ertheless permissible  in  certain  special 
cases:  Magpie  G.  M.  Co.  v.  Sherman  (S. 
Dak.),  121  N.  W.  770,  773,  (remedy  held 
permissible  in  this  action  to  restrain 
the  defendant  as  managing  agent  of  the 
corporation  from  doing  certain  wrongful 
acts  and  things  complained  of  during  the 
pendency  of  proceedings  for  an  account- 
ing for  moneys  alleged  to  have  been 
misapplied,  or  fraudulently  squandered 
or  disposed  of,  or  converted  to  the  de- 
fendant's own  use). 

13.  The  restraining  order  in  equity 
should  be  definite  and  certain  in  its 
terms,  and  should  point  out  to  the  de- 
fendants with  reasonable  certainty  the 
specific  acts  which  they  are  required  to 
refrain  from  doing:  Waddingham  v. 
Robledo,  6  N.  Mex.  347,  28  Pac.  663,  673. 

14.  A  petition  for  injunction  to  be  suf- 
ficient, must  state  facts  which  show  that 
the  plaintiff  has  no  adequate  remedy  at 
law;  and  if  the  injunction  be  denied, 
that  he  will  suffer  irreparable  injury. 
A  petition  which  merely  pleads  the  bald 
conclusions  is  insufficient.  The  formal 
allegations  in  the  words  of  the  statute 
are  properly  used  only  when  pleaded  in 
connection  with  facts  which  taken  as 
true  would  constitute  annoyance,  incon- 
venience, or  irreparable  injury:  Mc- 
Keever  v.  Buker,  80  Kan.  201,  101  Pac. 
991. 

15.  Discretion  of  court. — Granting  a 
temporary  injunction  pendente  lite  is 
largely  within  the  discretion  of  the  court, 
and  the  appellate  court  will  not  vacate 
such  an  order  on  appeal  unless  there 
has  been  a  clear  abuse  of  discretion,  or 


unless  the  same  was  granted  without 
authority:  Severns  v.  English  (Okla.), 
101  Pac.  750,  754,  citing  Reaves  v.  Oliver, 
3  Okla.  62,  41  Pac.  353. 

16.  The  matter  of  granting  or  con- 
tinuing a  temporary  writ  of  injunction 
rests  largely  in  the  sound  discretion  of 
the  trial  court:  Walker  v.  Stone,  70 
Iowa  103,  30  N.  W.  39;  Swan  v.  City  of 
Indianola,  142  Iowa  731,  121  N.  W.  547, 
549. 

17.  Discretion  is  a  legal  one. — The  dis- 
cretion exercised  by  a  court  in  granting 
or  continuing  a  temporary  writ  of  in- 
junction is  a  legal  one,  and,  if  not  based 
upon  sufficient  grounds,  will  be  reversed 
on  appeal:  Swan  v.  City  of  Indianola, 
142  Iowa  731,  121  N.  W.  547,  549;  Sin- 
nett  v.  Moles,  38  Iowa  25;  Stewart  v. 
Johnston,  44  Iowa  435;  Fuson  v.  Con- 
necticut I.  Co.,  53  Iowa  609,  6  N.  W.  7. 

18.  California  rule. — It  is  a  settled  rule 
in  California  that  an  order  granting  or 
dissolving  an  injunction  is  a  matter  of 
discretion  with  the  lower  court,  and  that 
such  discretion  will  not  be  interfered 
with  by  a  reviewing  court  unless  it 
clearly  appears  that  such  discretion  has 
been  abused:  Long  v.  Newman,  10  Cal. 
App.  430,  102  Pac.  534,  538. 

19.  Dissolving  temporary  injunction. — 
Rule. — The  general  rule  as  to  a  tem- 
porary injunction  is  that  where  all  the 
material  allegations  of  the  petition  for 
an  injunction  are  fully  and  satisfactorily 
denied  in  the  answer,  the  preliminary 
injunction  will  be  dissolved:  Swan  v. 
City  of  Indianola,  142  Iowa  731,  121  N. 
W.  547,  549;  Walker  v.  Stone,  70  Iowa 
103,  30  N.  W.  39;  Carrothers  v.  Newton 
Co.,  61  Iowa  681,  17  N.  W.  43;  Russell  v. 
Wilson,  37  Iowa  337. 

20.  An  exception  to  the  rule  is  made 
where  fraud  is  the  gravamen  of  the  ac- 
tion, or  it  is  apparent  that  by  a  disso- 
lution of  the  injunction  the  party  wilt 
lose  all  benefit  to  accrue  from  final  suc- 
cess in  his  suit:  Johnston  v.  Railroad, 
68  Iowa  537,  12  N.  W.  576;  Fargo  v. 
Ames,  45  Iowa  494;  Stewart  v.  Johnston, 
44  Iowa  435;  Wingert  v.  City  of  Tipton, 
134  Iowa  97,  108  N.  W.  1035,  111  N.  W. 
432;   Sinnett  v.   Moles,   38  Iowa  25. 

21.  A  motion  to  dissolve  an  Injunction 
is  properly  granted  where  the  only  al- 
legations of  the  complaint  in  the  suit 
are  made  on  information  and  belief,  and 
these    averments    are    positively    contra- 


1672                           ATTACHMENT  AND  GARNISHMENT.  [Tit.  XV. 

dieted  by  certain  affidavits  filed  on  the  St.  Rep.  477;  Gossard  v.  Crosby,  132  Iowa 

motion  to  dissolve,  and  where  the  com-  155,    109  N.   W.   483,   6   L.   R.   A.    (N.   S.) 

plaint    is    not   supported    by    counter-af-  1115;  Swan  v.  City  of  Indianola,  142  Iowa 

fidavits:     Carstens   v.    City    of    Fond    du  731,  121  N.  W.  547,  549. 

Lac,    137   Wis.    465,    119    N.    W.    117,    121,  23.   Decision    on    merits    not    permitted 

citing  Dinehart  v.  Town  of  Lafayette,  19  on    motion    to    dissolve. — An    attempt    to 

Wis.    677;    Schoeffier    v.    Schwarting,    17  obtain    a    decision    by    summary    action 

Wis.  30;  Smith  v.  Appleton,  19  Wis.  468;  upon  the   merits  of  the  case  will  not  be 

Tainter  v.  Lucas,  29  Wis.  375;  Pittelkow  permitted  upon  a  motion  to  dissolve  sup- 

v.  Herman,  94  Wis.  666,  69  N.  W.  805.  ported    by    affidavits    only:     Wingert    v. 

22.   Dissolving   injunction    upon    appeal.  City  of  Tipton,   134  Iowa  97,    108  N.   W. 

— If  upon  the  entire  record  nothing  but  1035,  111  N.  W.  432. 

questions    of    law    are    involved,    and    it  24.  A    temporary    writ    of     injunction 

appears  that  the  injunction  was  improv-  Improvidently     issued     in     behalf     of     a 

idently  issued,   it  will  be  dissolved  upon  plaintiff    not    without    fault    is    properly 

appeal:    Burlington  Co.  v.   Dey,   82  Iowa  dissolved     and     dismissed:       Newby     v. 

312,  48  N.  W.  98,  12  L.  R.  A.  436,  31  Am.  Laurence,  84  Neb.  622,  121  N.  W.  965. 


CHAPTER   CXXIV. 

Attachment  and   Garnishment. 

Page 

§  428.  Code  provisions    1673 

§  429.  Affidavits   1688 

Form  No.  1021.  For  attachment  against  residents.  (Common 
form — Alaska,  Arizona,  California,   Hawaii, 

Idaho,  Oregon,  Utah.)   1688 

Form  No.  1022.  For  attachment  against  non-resident,  upon  a 

contract   1689 

Form  No.  1023.  For  attachment  against  resident.     (Nebraska.)     1689 

Form  No.  1024.  For   attachment   against   non-resident,   where 

the  cause  of  action  is  to  recover  damages 

arising  from  an  injury  to  property  in  the 

state,  in  consequence  of  fraud,  negligence, 

or  other  wrongful  act  1690 

Form  No.  1025.  For  attachment  against  non-resident,  for  un- 
liquidated  damages   ascertainable   under   a 

contract  1690 

Form  No.  1026.  For  attachment  against  defendant  about  to 
leave  the  state  with  intent  to  defraud  cred- 
itors       1691 

S  430.  Undertakings   1692 

Form  No.  1027.  Undertaking  on  attachment 1692 

Form  No.  1028.  Oath  of  sureties  endorsed  upon  or  attached  to 

the  foregoing  undertaking 1693 

Form  No.  1029.  Undertaking  given  to  procure  an  order  to  dis- 
charge an  attachment  1693 

I  431.  Writ,  certificates,  return,  etc 1694 

Form  No.  1030.  Writ  of  attachment 1694 


Ch  CXXIV.]  CODE  PROVISIONS.  1673 

Form  No.  1031.  Return  of  sheriff  to  writ  of  attachment 1695 

Form  No.  1032.  Notice  of  garnishment  [or  attachment]  of 
moneys  [etc.]  owing  [or  belonging]  to  de- 
fendant       1695 

Form  No.  1033.  Certificate  by  sheriff  of  execution  of  writ  of 

attachment  in  garnishment  proceeding 1695 

Form  No.  1034.  Answer  of  garnishee  to  writ 1696 

Form  No.  1035.  Receipt  in  satisfaction  of  claim,  and  directing 

release  of  goods  attached 1696 

8  432.  Motions  and  or     rs   1696 

Form  No.  1036.  Motion  to  quash  writ  of  attachment.     (Special 

appearance.)   1696 

Form  No.  1037.  Order  releasing  attachment  1697 

Form  No.  1038.  Order  discharging  an  attachment  improperly 

or  irregularly  issued   1697 

Form  No.  1039.  Order  for  the  sale  of  attached  property 1697 

Form  No.  1040.  Order  reviving  proceedings  against  non-resi- 
dent defendant,  and  continuing  attachment 

proceeding 1698 

§  433.  Annotations 1698 


§428.     CODE  PROVISIONS. 

Attachment — When  and  in  what  cases  may  issue. 
California,  §  537.  The  plaintiff,  at  the  time  of  issuing  the  summons, 
or  at  any  time  afterward,  may  have  the  property  of  the  defendant 
attached,  as  security  for  the  satisfaction  of  any  judgment  that  may 
be  recovered,  unless  the  defendant  give  security  to  pay  such  judg- 
ment, as  in  this  chapter  provided,  in  the  following  cases : 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  where  the  contract  is  made  or  is  payable  in  this 
state,  and  is  not  secured  by  any  mortgage  or  lien  upon  real  or  per- 
sonal property,  or  any  pledge  of  personal  property;  or,  if  originally 
so  secured,  such  security  has,  without  any  act  of  the  plaintiff,  or  the 
person  to  whom  the  security  was  given,  become  valueless. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against  a 
defendant  not  residing  in  this  state. 

3.  In  an  action  against  a  defendant,  not  residing  in  this  state,  to 
recover  a  sum  of  money  as  damages,  arising  from  an  injury  to  prop- 
erty in  this  state,  in  consequence  of  negligence,  fraud,  or  other 
wrongful  act.     (Kerr's  Cyc.  Code  Civ.  Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  referente  Is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 


1674 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


•  Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §135.  b  Arizona,  Rev.  Stats 
1901,  Till  332,  335.  c  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §344.  a  Colorado, 
Rev.  Stats.  1908,  C.  C.  P.  §  97.  e  Hawaii,  Rev.  Laws  1905,  §  1706;  Laws  1905. 
p.  184,  §  2.  t  Idaho,  Rev.  Codes  1909,  §  4302.  8  Iowa,  Ann.  Code  1897,  §  3876. 
h  Kansas,  Gen.  Stats.  1905  (Dassler),  §§5072,  5125.  i  Minnesota,  Rev.  Laws 
1905,  §  4215.  i  Missouri,  Ann.  Stats.  1906,  §  366.  k  Montana,  Rev.  Codes  1907, 
§§6656,  6658.  i  Nebraska,  Comp.  Stats.  Ann.  1909,  §§6741,  6787;  Ann.  Stats. 
1909  (Cobbey),  §§1171,  1216.  m  Nevada,  Comp.  Laws  Ann.  1900  (Cutting), 
§  3218.  n  New  Mexico,  Comp.  Laws  1897,  §  2685,  sub-sees.  182-184,  206.  o  North 
Dakota,  Rev.  Codes  1905,  §§  6938,  6939.  p  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §§4365,  4417;  Comp.  Laws  1909  (Snyder),  §§5701,  5753.  q  Oregon, 
Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot),  §296.  r  South  Dakota,  Rev.  Codes 
1903,  C.  C.  P.  §  205.  s  Texas,  Civ.  Stats.  1897  (Sayles),  Arts.  186-189.  t  Utah, 
Comp.  Laws  1907,  §  3064.  u  Washington,  Code  1910  (Rem.  &  Bal.),  §§  647,  649. 
v  Wisconsin,  Stats.  1S98  (San.  &  Ber.  Ann.),  §§2729,  2730.  w  Wyoming,  Rev. 
Stats.  1899,  §§  3988,  4031. 


a  Alaska,  C.  C.  P.  §  135,  same  as  Cal. 
C.  C.  P.  §  537,  down  to  include  the  word 
"money"  in  second  line  of  sub.  1,  then 
omit  the  remainder  of  sub.  1  and  sub- 
stitute the  words  "and  which  is  not 
secured  by  mortgage,  iien,  or  pledge 
upon  real  or  personal  property,  or,  if 
so  secured,  when  such  security  has  been 
rendered  nugatory  by  the  act  of  the 
defendant."  Sub.  2,  same  as  sub.  2, 
Cal.  C.  C.  P.  §  537,  except  at  end  change 
"this  state"  to  "the  district."  Omit 
sub.  3  of  Cal.  C.  C.  P.  §  537. 

bi  Arizona,  fl  332.  The  plaintiff  at  the 
time  of  filing  his  complaint,  or  at  any 
time  afterward,  may  have  the  property 
of  the  defendant  attached,  as  security 
for  the  satisfaction  of  any  judgment 
that  may  be  recovered,  unless  the  de- 
fendant give  security  to  pay  such  judg- 
ment, as  in  this  chapter  provided,  in 
the    following   cases: 

1.  In  an  action  upon  a  contract,  ex- 
press or  implied,  for  the  direct  payment 
of  money,  where  the  contract  is  made 
or  is  payable  in  this  territory,  and  is 
not  fully  secured  by  any  mortgage  or 
lien  upon  real  or  personal  property,  or 
any  pledge  of  personal  property;  or,  if 
originally  so  secured,  such  security  has 
without  any  act  of  the  plaintiff,  or  the 
persons  to  whom  the  security  was 
given,  become  valueless. 

2.  When  any  suit'  be  pending  for 
damages,  and  the  defendant  is  about 
to  dispose  of  or  remove  his  property 
beyond  the  jurisdiction  of  the  court  in 
which  the  action  is  pending  for  the  pur- 


pose of  defeating  the  collection  of  the 
judgment. 

3.  In  an  action  upon  a  contract,  ex- 
press or  implied,  against  a  defendant 
not  residing  in  this  territory  or  a  for- 
eign corporation  doing  business  in  this 
territory. 

b2  Arizona,  fl  335,  provides  for  attach- 
ment in  certain  cases  where  debt  is 
not  yet  due. 

c  Arkansas,  §  344.  The  plaintiff  in  a 
civil  action  may,  at  or  after  the  com- 
mencement thereof,  have  an  attach- 
ment against  the  property  of  the  de- 
fendant in  the  cases  and  upon  the 
grounds  hereinafter  stated,  as  a  secur- 
ity for  the  satisfaction  of  such  judg- 
ment  as    may    be   recovered: 

First.  In  an  action  for  the  recovery 
of  money,  where  the  action  is  against — 

1.  A  defendant  or  several  defendants 
who,  or  some  one  of  whom,  is  a  foreign 
corporation  or  non-resident  of  the  Siate; 
or, 

2.  "Who  has  been  absent  therefrom 
four  months;  or, 

3.  Has  departed  from  this  state  with 
intent  to  defraud  his  creditors;  or, 

4.  Has  left  the  county  of  his  residence 
to  avoid   the  service  of  a  summons;   or, 

5.  So  conceals  himself  that  a  sum- 
mons can  not  be  served  upon  him;  or, 

6.  Is  about  to  remove,  or  has  removed, 
his  property,  or  a  material  part  thereof, 
out  of  this  state,  not  leaving  enough 
therein  to  satisfy  the  plaintiff's  claim 
or  the  claim  of  said  defendant's  cred- 
itors;   or, 


<Ch.  CXXIV.] 


CODE  PROVISIONS. 


1675 


7.  Has  sold,  conveyed  or  otherwise 
disposed  of  his  property,  or  suffered  or 
permitted  it  to  be  sold,  with  the  fraud- 
ulent intent  to  cheat,  hinder  or  delay 
his    creditors;    or, 

8.  Is  about  to  sell,  convey  or  otherwise 
dispose  of  his  property  with  such  in- 
tent. But  an  attachment  shall  not  be 
granted  on  the  ground  that  the  defend- 
ant or  defendants,  or  any  of  them,  is  a 
foreign  corporation  or  non-resident  of 
this  state  for  any  claim  other  than  a 
debt   or   demand    arising   upon    contract. 

9.  The  cause  of  attachment  mentioned 
in  the  preceding  subdivisions  against 
one  or  more  defendants  to  a  civil  action 
shall  not  authorize  an  attachment 
against  any  of  the  defendants  who  are 
not  embraced  in  any  of  said  subdivis- 
ions, but  the  estate  or  interest  of  such 
defendants  only  as  are  embraced  therein 
shall    be    subject    to    attachment. 

Second.  In  an  action  to  recover  pos- 
session of  personal  property  where  it 
has  been  ordered  to  be  delivered  to  the 
plaintiff,  and  where  the  property,  or 
part  thereof,  has  been  disposed  of,  con- 
cealed or  removed,  so  that  the  order  for 
its  delivery  can  not  be  executed  by  the 
officer. 

d  Colorado,  C.  C.  P.  §  97.  The  plaint- 
iff, at  the  time  of  issuing  the  summons 
or  filing  the  complaint  in  an  action  on 
contract,  express  or  implied,  or  at  any 
time  afterward  before  judgment,  may 
have  the  property  of  the  defendant,  not 
exempt  from  execution,  attached  as  se- 
curity for  any  judgment  that  may  be 
recovered  in  such  action  in  the  manner 
prescribed  in  this  chapter,  unless  the 
defendant  shall  give  good  and  sufficient 
security  to  secure  the  payment  of  such 
judgment. 

ei  Hawaii,  §  1706.  Such  magistrate 
shall  issue  an  attachment  against  the 
personal  property  of  the  defendant  when 
requested  in  any  action  founded  on  a 
judgment  or  on  a  contract,  express  or 
implied,  if  the  plaintiff,  or  some  one  in 
his  behalf,  shall  make  and  file  in  such 
court  an  affidavit  specifying,  as  near  as 
may  be,  the  amount  due  the  plaintiff 
from  the  defendant,  exclusive  of  all  set- 
offs and  counterclaims,  and  containing 
a  further  statement  either  that  the  de- 
ponent knows,  or  has  good  reason  to  be- 
lieve; 

First,  that  the  defendant  contracted 
the  debt  sued  upon  in  a  fraudulent  and 
deceitful  manner,  or  upon  false  and  un- 
founded pretenses;  or 


Second,  that  the  defendant  has  as- 
signed, disposed  of,  or  concealed,  or  is 
about  to  assign,  dispose  of  or  conceal 
his  property,  with  the  intent  to  defraud 
his   creditors;    or 

Third,  that  the  defendant  is  about  to 
remove  any  of  his  property  from  the 
island  wherein  such  application  is  made, 
with  the  like  intent,  and  that  he  re- 
fuses and  neglects  to  pay  or  secure  the 
payment  of  the  debt;   or 

Fourth,  that  the  defendant  has  ab- 
sconded to  the  injury  of  his  creditors; 
or  is  not  a  resident  of  this  territory;  or 
has  not  resided  therein  for  one  month 
immediately  preceding  such  application; 
•         *         * 

e2  Hawaii,  Laws  1905,  p.  184,  §  2.  The 
plaintiff,  in  any  action  upon  a  contract, 
express  or  implied,  may,  at  the  time  of 
commencing  such  action,  or  at  any  time 
afterward  before  judgment,  have  the 
property  of  the  defendant,  or  that  of 
any  one  or  more  of  several  defendants, 
which  is  not  exempt  from  execution,  at- 
tached in  the  manner  hereinafter  pre- 
scribed, as  security  for  the  satisfaction 
of  such  judgment  as  he  may  recover, 
but  no  writ  of  attachment  shall  be  is- 
sued against  the  territory,  or  any  polit- 
ical or  municipal  corporation  or  subdi- 
vision thereof.  (Amended  Apr.  3,  1909, 
Laws   1909,    p.   75.) 

f  Idaho,  §  4302,  same  as  Cal.  C.  C.  P. 
§  537,  except  insert  after  "action"  in  the 
first  line  of  sub.  1,  the  words  "upon  a 
judgment,  or"  before  "upon";  also  after 
the  words  "money,  where"  in  the  sec- 
ond line  of  that  sub.  omit  the  words 
"the  contract  is  made  or  is  payable  in 
this  state,  and";  also  in  sub.  2,  line  1, 
after  "upon  a"  insert  the  words  "judg- 
ment or  upon";  also  omit  sub.  3  of  Cal. 
C.   C.   P.   §  537. 

g  Iowa,  §  3S76.  The  plaintiff  in  a  civil 
action  may  cause  the  property  of  the 
defendant  not  exempt  from  execution 
to  be  attached  at  the  commencement  or 
during  the  progress  of  the  proceedings, 
by  pursuing  the  course  hereinafter  pre- 
scribed. 

hi  Kansas,  §  5072.  The  plaintiff  in  a 
civil  action  for  the  recovery  of  money 
or  in  a  suit  for  alimony  may,  at  or  after 
the  commencement  thereof,  have  an  at- 
tachment against  the  property  of  the 
defendant,  and  upon  one  or  more  of  the 
grounds  herein  stated: 

First,  When  the  defendant  or  one  of 
several  defendants  is  a  foreign  corpora- 
tion,   or    a    non-resident    of    this    state; 


1676 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


but  no  order  of  attachment  shall  be  is- 
sued on  the  ground  or  grounds  in  this 
clause  stated  for  any  claim  other  than 
a  debt  or  demand  arising  upon  contract, 
judgment  or  decree,  unless  the  cause  of 
action  arose  wholly  within  the  limits  of 
this  state,  which  fact  must  be  estab- 
lished on  the  trial. 

Second,  When  the  defendant  or  one  of 
several  defendants  has  absconded  with 
intention  to  defraud  his  creditors. 

Third,  Has  left  the  county  of  his  resi- 
dence to  avoid  the  service  of  summons. 

Fourth,  So  conceals  himself  that  a 
summons  cannot  be  served  upon  him. 

Fifth,  Is  about  to  remove  his  property 
or  a  part  thereof  out  of  the  jurisdiction 
of  the  court,  with  the  intent  to  defraud 
his  creditors. 

Sixth,  Is  about  to  convert  his  property 
or  a  part  thereof,  into  money,  for  the 
purpose  of  placing  it  beyond  the  reach 
of  his  creditors. 

Seventh,  Has  property  or  rights  in  ac- 
tion, which  he  conceals. 

Eighth,  Has  assigned,  removed  or  ais- 
posed  of,  or  is  about  to  dispose  of,  his 
property  or  a  part  thereof  with  the  in- 
tent to  defraud,  hinder  or  delay  his 
creditors. 

Ninth,  Fraudulently  contracted  the 
debt,  or  fraudulently  incurred  the  lia- 
bility or  obligation  for  which  the  suit 
is  about  to  be  or  has  been  brought. 

Tenth,  Where  the  damages  for  which 
the  action  is  brought  are  for  injuries 
arising  from  the  commission  of  some 
felony  or  misdemeanor,  or  the  seduction 
of  any  female. 

Eleventh,  When  the  debtor  has  failed 
to  pay  the  price  or  value  of  any  article 
or  thing  delivered,  which  by  contract  he 
was  bound  to  pay  upon  delivery. 
(Amended,  Mch.  12,  1909,  Laws  1909,  p. 
329,   C.   C.   P.    §  190.) 

h2  Kansas,  §  5125,  provides  that  at- 
tachments may  issue  in  certain  cases 
for  debts  not  yet  due.  (Amended  Mch. 
12,  1909,  Laws  1909,  p.  329,  C.  C.  P. 
§  221.) 

l  Minnesota,  §4215.  In  an  action  for 
the  recovery  of  money,  other  than  for 
libel,  slander,  seduction,  breach  of 
promise  of  marriage,  false  imprison- 
ment, malicious  prosecution,  or  assault 
and  battery,  the  plaintiff,  at  the  time  of 
issuing  the  summons  or  at  any  time 
thereafter,  may  have  the  property  of 
the  defendant  attached  in  the  manner 
hereinafter    prescribed,    as    security    for 


the  satisfaction  of  such  judgment  as  h« 
may  recover.  A  writ  of  attachment 
shall  be  allowed  by  a  judge  of  the  court 
in  which  the  action  is  brought,  or  a 
court  commissioner  of  the  county.  The 
action  must  be  begun  as  provided  in 
§  40S1  not  later  than  sixty  days  after 
issuance  of  the  writ. 

J  Missouri,  §  366.  In  any  court  having 
competent  jurisdiction,  the  plaintiff  in 
any  civil  action  may  have  an  attach- 
ment against  the  property  of  the  de- 
fendant, or  that  of  any  one  or  more  of 
several  defendants,  in  any  one  or  more 
of  the  following  cases: 

1.  Where  the  defendant  is  not  a  resi- 
dent of  this  state. 

2.  Where  the  defendant  is  a  corpora- 
tion, whose  chief  office  or  place  of  busi- 
ness is  out  of  this  state. 

3.  Where  the  defendant  conceals  him- 
self, so  that  the  ordinary  process  of  law 
cannot  be  served  upon  him. 

4.  Where  the  defendant  has  absconded 
or  absented  himself  from  his  usual  place 
of  abode,  in  this  state,  so  that  the  ordi- 
nary process  of  law  cannot  be  served 
upon   him. 

5.  Where  the  defendant  is  about  to  re- 
move his  property  or  effects  out  of  this 
state,  with  the  intent  to  defraud,  hinder 
or  delay  his  creditors. 

6.  Where  the  defendant  is  about  to  re- 
move out  (of)  this  state,  with  the  in- 
tent to  change  his  domicile. 

7.  Where  the  defendant  has  fraudu- 
lently conveyed  or  assigned  his  property 
or  effects,  so  as  to  hinder  or  delay  his 
creditors. 

8.  Where  the  defendant  has  fraudu- 
lently concealed,  removed  or  disposed  of 
his  property  or  effects,  so  as  to  hinder 
or  delay  his   creditors. 

9.  Where  the  defendant  is  about  fraud- 
ulently to  convey  or  assign  his  property 
or  effects,  so  as  to  hinder  or  delay  his 
creditors. 

10.  Where  the  defendant  is  about 
fraudulently  to  conceal,  remove  or  dis- 
pose of  his  property  or  effects,  so  as  to 
hinder  or   delay  his   creditors. 

11.  Where  the  cause  of  action  occurred 
out  of  this  state,  and  the  defendant  has 
absconded,  or  secretly  removed  his 
property  or  effects  into  this  state. 

12.  Where  the  damages  for  which  the 
action  is  brought  are  for  injuries  arising 
from  the  commission  of  some  felony  or 
misdemeanor,  or  for  the  aeduction  of 
any   female. 


Ch.  CXXIV.] 


CODE  PROVISIONS. 


1677 


13.  Where  the  debtor  has  failed  to  pay 
the  price  or  value  of  any  article  or 
thing  delivered,  which,  ,by  contract,  he 
was  bound  to  pay  upon  the  delivery. 

14.  Where  the  debt  sued  for  was 
fraudulently  contracted  on  the  part  of 
the  debtor. 

ki  Montana,  §  6656.  The  plaintiff,  at 
the  time  of  issuing  the  summons,  or  at 
any  time  afterwards,  may  have  the 
property  of  the  defendant  attached,  as 
security  for  the  satisfaction  of  any  judg- 
ment that  may  be  recovered,  unless  the 
defendant  gives  security  to  pay  such 
judgment,  as  in  this  chapter  provided, 
as  follows: 

In  an  action  upon  a  contract,  express 
or  implied,  for  the  direct  payment  of 
money,  where  the  contract  is  not  se- 
cured by  any  mortgage  or  lien  upon  real 
or  personal  property,  or  any  pledge  of 
personal  property,  or,  if  originally  se- 
cured, such  security  has,  without  any 
act  of  the  plaintiff,  or  the  person  to 
whom  the  security  was  given,  become 
valueless. 

k2  Montana,  §  6658,  provides  for  at- 
tachment  on    debts    not   due. 

U  Nebraska,  §  6741,  substantially  same 
as  Kansas  §  5072,  as  amended  1909,  C.  C. 
P.  §  190,  except  in  the  opening  passage 
after  "money"  omit  "or  in  a  suit  for 
alimony"  before  "may";  also  in  the 
same  passage  near  the  end  after  "upon" 
omit  "one  or  more  of"  before  "the 
grounds";  also  in  sub.  1  omit  all  after 
the  semicolon  following  "state";  also  in 
sub.  8,  near  the  end,  after  "defraud" 
omit  "hinder  or  delay"  before  "his  cred- 
itors"; also  omit  all  of  subs.  10  and  11  of 
the  Kansas  statute  and  after  the  period 
following  "brought"  at  the  end  of  sub.  9 
add  "But  an  attachment  shall  not  be 
granted  on  the  ground  that  the  defend- 
ant is  a  foreign  corporation,  or  a  non- 
resident of  this  state,  for  any  claim 
other  than  a  debt  or  demand  arising 
upon  contract,  judgment  or  decree." 

12  Nebraska,  §  6787,  provides  for  the 
issuance  of  attachments  on  debts  not 
yet  due,   in   certain  cases. 

m  Nevada,  §  3218.  The  plaintiff,  at  the 
time  of  issuing  the  summons,  or  at  any 
time  afterwards,  may  have  the  property 
of  the  defendant  attached  as  security 
for  the  satisfaction  of  any  judgment 
that  may  be  recovered,  unless  the  de- 
fendant give  security  to  pay  such  judg- 
ment as  hereinafter  provided  in  the  fol- 
lowing cases: 


First — In  an  action  upon  a  judgment 
or  upon  a  contract,  expressed  or  implied, 
for  the  direct  payment  of  money,  which 
is  not  secured  by  mortgage,  lien  or 
pledge  upon  real  or  personal  property 
situated  or  being  in  this  state,  and  if  so 
secured  when  such  security  has  been 
rendered  nugatory  by  the  act  of  the  de- 
fendant. 

Second — In  an  action  against  a  de- 
fendant not  residing  in  this  state. 

Third — In  an  action  by  a  resident  of 
this  state  for  the  recovery  of  the  value 
of  property,  where  such  property  has 
been  converted  by  a  defendant  without 
the  consent  of  the  owner. 

Fourth — Where  a  defendant  has  ab- 
sconded, or  is  about  to  abscond  with  the 
intent  to  defraud  his  creditors. 

Fifth — Where  a  defendant  conceals 
himself  so  that  service  of  summons  can 
not  be  made  upon  him. 

Sixth— Where  a  defendant  is  about  to 
remove  his  property,  or  any  part  there- 
of, beyond  the  jurisdiction  of  the  court, 
with  the  intent  to  defraud  his  creditors. 

Seventh — Where  a  defendant  is  about 
to  convert  his  property,  or  any  part 
thereof,  into  money,  with  the  intent  to 
place  it  beyond  the  reach  of  his  cred- 
itors. 

Eighth — Where  a  defendant  has  as- 
signed, removed,  disposed  of,  or  is  about 
to  dispose  of  his  property,  or  any  part 
thereof,  with  the  intent  to  defraud  his 
creditors. 

Ninth — Where  a  defendant  has  fraud- 
ulently or  criminally  contracted  the  debt 
or  incurred  the  obligation  for  which  suit 
has  been  commenced.  (Amended  Mch. 
12,   1907,   Stats.  1907,  p.  105.) 

ni  New  Mexico,  §  2685,  sub-sec.  182. 
Creditors  may  sue  their  debtors  in  the 
district  courts,  by  attachment,  in  the 
following  cases,  to- wit: 

I.  When  the  debtor  is  not  a  resident 
of,   nor   resides   in    this    territory; 

II.  When  the  debtor  has  concealed 
himself,  or  absconded,  or  absented  him- 
self from  his  usual  place  of  abode  in 
this  territory,  so  that  the  ordinary  proc- 
ess of  law  can  not  be  passed  upon  him; 

III.  When  the  debtor  is  about  to  re- 
move his  property  or  effects  out  of  this 
territory,  or  has  fraudulently  concealed 
or  disposed  of  his  property  or  effects  so 
as  to  defraud,  hinder  or  delay  his  cred- 
itors; 

IV.  When  the  debtor  is  about  fraudu- 
lently   to    convey    or    assign,    conceal    or 


1678 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


■dispose  of  his  property  or  effects,  so  as 
to  hinder,  delay  or  defraud  his  creditors; 

V.  When  debt  was  contracted  out  of 
this  territory,  and  the  debtor  has  ab- 
sconded or  secretly  removed  his  prop- 
erty or  effects  into  the  territory,  with 
the  intent  to  hinder,  delay  or  defraud 
his   creditors; 

VI.  Where  the  defendant  is  a  corpora- 
tion whose  principal  office  or  place  of 
business  is  out  of  this  territory,  unless 
such  corporation  shall  have  a  designated 
agent  in  the  territory,  upon  whom  serv- 
ice of  process  may  be  made  in  suits 
against  the   corporation; 

VII.  Where  the  defendant  fraudulently 
contracted  the  debt  or  incurred  the  ob- 
ligation respecting  which  the  suit  is 
brought  or  obtained  credit  from  the 
plaintiff  by  false  pretenses. 

An  attachment  may  issue  on  a  de- 
mand not  yet  due  in  any  case  where  an 
attachment  is  authorized,  in  the  same 
manner  as  upon  demands  already  due. 
(Laws   1907,  p.   270.) 

n2  New  Mexico,  §  26S5,  sub-sec.  183. 
Wherever  an  attachment  may  issue 
against  the  property  of  any  person  upon 
any  debt  or  other  action  founded  upon 
contract,  attachment  may  also  issue 
upon  any  action  founded  upon  a  tort  or 
other  action  ex  dilectu  [delicto];  this 
law  shall  apply  to  actions  which  have 
heretofore  or  may  hereafter  accrue. 
(Laws  1907,   p.   270.) 

n3  New  Mexico,  §  2685,  sub-sec.  184.  A 
creditor  wishing  to  sue  his  debtor  by 
attachment,  may  place  in  the  clerk's 
office  of  the  district  court  of  any  county 
in  this  territory,  having  jurisdiction  a 
complaint,  or  other  lawful  statement  of 
his  cause  of  action,  and  shall  also  file 
an  affidavit  and  bond;  and  thereupon 
such  creditor  may  sue  out  an  original 
attachment  against  the  lands,  tene- 
ments, goods,  moneys,  effects  and  cred- 
its of  the  debtor  in  whosoever  hands 
they  may  be.      (Laws  1907,  p.   271.) 

n4  New  Mexico,  §  2685,  sub-sec.  206. 
Any  person  wishing  to  sue  his  debtor  by 
attachment  may  do  so  by  first  filing 
with  the  clerk  of  the  district  court  of 
the  county  having  jurisdiction,  or  be- 
fore the  clerk  of  the  probate  court  of 
such  county,  an  affidavit  and  bond,  as 
required  to  be  made  before  the  clerk  of 
the  district  court,  which  shall  authorize 
the  clerk  before  whom  such  affidavit 
and  bond  shall  be  filed  to  issue  writs  of 
attachment,    the   same   as   clerks    of    the 


district  court,  which  attachment,  to- 
gether with  the  affidavit  and  bond,  when 
issued  by  clerks  of  the  probate  court, 
shall  be  by  them  made  returnable  as 
when  issued  out  of  the  district  court, 
and  such  affidavit  and  bond,  and  a  du- 
plicate of  such  writ  shall  be  immediately 
transmitted  by  such  probate  clerk  to  the 
clerk  of  the  district  court  of  such 
county.      (Laws  1907,  p.   275.) 

oi  North  Dakota,  §  6938.  In  an  action 
on  a  contract  or  judgment  for  the  re- 
covery of  money  only,  for  the  wrongful 
conversion  of  personal  property,  or  for 
damages,  whether  arising  out  of  con- 
tract or  otherwise,  the  plaintiff  at  or 
after  the  commencement  thereof  may 
have  the  property  of  the  defendant  at- 
tached in  the  following  cases: 

1.  When  the  defendant  is  not  a  resi- 
dent of  this  state  or  is  a  foreign  corpo- 
ration. 

2.  When  the  defendant  has  absconded 
or  concealed  himself. 

3.  When  the  defendant  has  removed 
or  is  about  to  remove  his  property,  or  a 
material  part  thereof  from  this  state, 
not  leaving  enough  therein  for  the  pay- 
ment of  his  debts. 

4.  When  the  defendant  has  sold,  as- 
signed, transferred,  secreted  or  other- 
wise disposed  of,  or  is  about  to  sell,  as- 
sign, transfer,  secrete,  or  otherwise 
dispose  of  his  property,  with  intent  to 
cheat  or  defraud  his  creditors,  or  to 
hinder  or  delay  them  in  the  collection  of 
their  debts. 

5.  When  the  defendant  is  about  to  re- 
move his  residence  from  the  county 
where  he  resides  with  the  intention  of 
permanently  changing  the  same  and 
fails  or  neglects  on  demand  to  give  se- 
curity for  the  debt  upon  which  the  ac- 
tion is  commenced. 

6.  When  the  debt  upon  which  the  ac- 
tion is  commenced  was  incurred  for 
property  obtained  under  false  pretenses. 

7.  When  the  defendant  is  about  to  re- 
move his  property  or  a  material  part 
thereof  from  the  state  with  the  intent 
or  to  the  effect  of  cheating  or  defraud- 
ing his  creditors  or  hindering  or  delay- 
ing them  in  the  collection  of  their  debts. 

8.  In  an  action  to  recover  purchase 
money,  for  personal  property  sold  to  the 
defendant,  an  attachment  may  be  issued 
and  levied  upon  such  property. 

02  North  Dakota,  §  6939,  provides  for 
the  issuance  of  attachments  on  debt* 
not  yet  due,   in  certain   cases. 


€h.  CXXIV.] 


CODE  PROVISIONS. 


1679 


pi  Oklahoma,  §  4365,  substantially  same 
as  Kansas  §  5072,  as  amended,  1909,  C. 
C.  P.  §  190,  except  in  the  opening  pas- 
sage after  "money"  omit  "or  in  a  suit 
for  alimony"  before  "may";  also  in  the 
same  passage  near  the  end,  after  "upon" 
omit  "one  or  more  of"  before  "the 
grounds." 

p2  Oklahoma,  §  4417,  provides  for  at- 
tachments in  certain  cases  on  debts  not 
yet  due.  (Amended,  Sess.  Laws  1905,  see 
Compiled  Laws  1909,   §  5753.) 

q  Oregon,  §  296,  substantially  same  as 
Alaska  C.   C.   P.   §  135. 

r  South  Dakota,  C.  C.  P.  §  205.  In  all 
cases  against  a  corporation  created  by 
or  under  the  laws  of  any  other  state, 
territory,  government  or  country,  which 
has  not  complied  with  the  laws  of  this 
state  relative  to  the  appointment  of 
agents  upon  whom  service  of  process 
m_y  be  made,  or  against  a  defendant 
who  is  not  a  resident  of  this  state,  or 
against  a  defendant  who  has  absconded 
or  concealed  himself,  or  whenever  any 
person  or  corporation  is  about  to  re- 
move any  of  his  or  its  property  from 
this  state,  or  has  assigned,  disposed  of, 
secreted  or  is  about  to  assign,  dispose  of 
or  secrete  any  of  his  or  its  property 
with  intent  to  defraud  creditors,  as 
hereinafter  mentioned,  the  plaintiff  at 
the  time  of  issuing  the  summons,  or  at 
any  time  afterwards,  may  have  the 
property  of  such  defendant  or  corpora- 
tion attached,  in  the  manner  hereinafter 
prescribed,  as  security  for  the  satisfac- 
tion of  such  judgment  as  the  plaintiff 
may  recover,  and  for  the  purposes  of 
this  section  an  action  shall  be  deemed 
commenced  when  the  summons  is  is- 
sued; provided,  however,  that  personal 
service  of  such  summons  shall  be  made, 
or  publication  thereof  commenced  within 
thirty  days.  (Re-enacted  Feb.  26,  1907, 
Sess.  Laws  1907,  pp.   165,   186.) 

si  Texas,  Art.  186.  The  judges  and 
clerks  of  the  district  and  county  courts 
and  justices  of  the  peace,  may  issue 
writs  or  original  attachment,  returnable 
to  their  respective  courts,  upon  the 
plaintiff,  his  agent  or  attorney,  making 
an   affidavit  in  writing,   stating: 

1.  That  the  defendant  is  justly  in- 
debted to  the  plaintiff  and  the  amount 
of  the  demand;  and 

2.  That  the  defendant  is  not  a  resident 
of  the  state,  or  is  a  foreign  corpora- 
tion, or  is  acting  as  such;  or 


3.  That  he  is  about  to  remove  perma- 
nently out  of  the  state,  and  has  refused 
to  pay  or  secure  the  debt  due  the  plaint- 
iff; or 

4.  That  he  secretes  himself  so  that  the 
ordinary  process  of  law  cannot  be  served 
on    him;    or 

5.  That  he  has  secreted  his  property 
for  the  purpose  of  defrauding  his  cred- 
itors;   or 

6.  That  he  is  about  to  secrete  his  prop- 
erty for  the  purpose  of  defrauding  his 
creditors;    or 

7.  That  he  is  about  to  remove  his 
property  out  of  the  state,  without  leav- 
ing sufficient  remaining  for  the  payment 
of  his  debts;   or 

8.  That  he  is  about  to  remove  his 
property,  or  a  part  thereof,  out  of  the 
county  where  the  suit  is  brought,  with 
intent   to   defraud   his   creditors;    or 

9.  That  he  has  disposed  of  his  prop- 
erty, in  whole  or  in  part,  with  intent  to 
defraud   his   creditors;   or 

10.  That  he  is  about  to  dispose  of  his 
property  with  intent  to  defraud  his 
creditors;    or 

11.  That  he  is  about  to  convert  his 
property,  or  a  part  thereof,  into  money, 
for  the  purpose  of  placing  it  beyond  the 
reach   of  his   creditors;   or 

12.  That  the  debt  is  due  for  property 
obtained  under  false  pretenses. 

s2  Texas,  Art.  187.  The  affidavit  shall 
further    state — 

1.  That  the  attachment  is  not  sued 
out  for  the  purpose  of  injuring  or  harass- 
ing  the   defendant;    and 

2.  That  the  plaintiff  will  probably  lose 
his  debt  unless  such  attachment  is  is- 
sued. 

s3  Texas,  Art.  188.  No  such  attach- 
ment shall  issue  until  the  suit  has  been 
duly  instituted,  but  it  may  be  issued  in 
a  proper  case  either  at  the  commence- 
ment of  the  suit  or  at  any  time  during 
its  progress. 

s4  Texas,  Art.  189,  provides  for  attach- 
ments on  debts  not  yet  due. 

t  Utah,  §  3064.  The  plaintiff,  at  the 
time  of  issuing  the  summons,  or  at  any 
time  afterward,  may  have  the  property 
of  the  defendant,  not  exempt  from  exe- 
cution, attached  as  security  for  the  sat- 
isfaction of  any  judgment  that  may  be 
recovered,  unless  the  defendant  give  se- 
curity to  pay  such  judgment,  as  in  this 
chapter  provided,  in  the  following  cases: 
In  an  action  upon  a  judgment  or  upon  a 
contract  express  or  implied,  which  is  not 


1680 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


secured  by  any  mortgage  or  lien  upon 
real  or  personal  property  situated  or  be- 
ing In  this  state,  or,  if,  originally  so  se- 
cured, when  such  security  has,  without 
any  act  of  the  plaintiff,  or  of  the  person 
to  whom  the  security  was  given,  become 
valueless;  against  a  defendant  who — 

1.  Is  not  residuary  in  this  state;  or 

2.  Stands  in  defiance  of  an  officer,  or 
conceals  himself  so  that  process  cannot 
be  served   upon   him;   or, 

3.  Has  assigned,  disposed  of,  or  con- 
cealed, or  is  about  to  assign,  dispose  of, 
or  conceal,  any  of  his  property  with  in- 
tent to  defraud  his  creditors;  or, 

4.  Has  departed  or  is  about  to  depart 
from  the  state  to  the  injury  of  his  cred- 
itors;   or, 

5.  Fraudulently  contracted  the  debt,  or 
incurred  the  obligation  respecting  which 
the  action  is  brought. 

ui  Washington,  §  647.  The  plaintiff  at 
the  time  of  commencing  an  action,  or  at 
any  time  afterward  before  judgment, 
may  have  the  property  of  the  defendant, 
or  that  of  any  one  or  more  of  several 
defendants,  attached  in  the  manner 
hereinafter  prescribed,  as  security  for 
the  satisfaction  of  such  judgment  as  he 
may  recover. 

u2  Washington,  §  649,  provides  for  at- 
tachment on  debts  not  due. 

vi  Wisconsin,  §  2729.  Any  creditor 
shall  be  entitled  to  proceed  by  attach- 
ment in  the  circuit  court  for  the  proper 
county,  against  the  property  of  his 
debtor,  whether  a  natural  person  or  cor- 
poration, in  the  cases,  upon  the  condi- 
tions and  in  the  manner  prescribed  in 
this  chapter.  No  writ  Of  attachment 
shall  be  issued  against  a  municipal  cor- 
poration, or  in  any  action,  or  in  aid  of 
any  action,  or  in  aid  of  any  execution  in 
any  action  brought  to  recover  the  price 


or  value  of  strong,  spirituous,  malt,  ar- 
dent, or  intoxicating  liquors  sold  at  re- 
tail. (Amended  June  2,  1909,  Laws  1909, 
p.   292.) 

v2  Wisconsin,  §  2730.  The  writ  of  at- 
tachment shall  be  issued  on  the  request 
of  the  plaintiff,  by  the  clerk  of  the  court, 
either  at  the  time  of  the  issuing  of  the 
summons  in  the  action  or  at  any  time 
thereafter  before  final  judgment.  It 
shall  be  directed  by  the  style  of  "The 
state  of  Wisconsin"  to  the  sheriff  or 
other  proper  officer  of  some  county  in 
which  the  property  of  the  defendant,  so 
proceeded  against,  may  be  supposed  to- 
be,  and  shall  require  him  to  attach  and 
safely  keep  all  the  property  of  such  de- 
fendant within  his  county  or  so  much 
thereof  as  may  be  sufficient  to  satisfy 
the  plaintiff's  demand,  together  with 
costs  and  expenses.  It  shall  be  attested 
in  the  name  of  the  presiding  judge  of 
the  court  and  be  sealed  with  its  seal. 

wi  Wyoming,  §  3988,  substantially  same 
as  Kansas  §  5072,  as  amended  1909,  C.  C. 
P.  §  190,  except  in  the  opening  pas- 
sage after  "money"  omit  "or  in  a  suit 
for  alimony"  before  "may";  also  in  the 
same  passage  near  the  end  after  "upon" 
omit  "one  or  more  of"  before  "the 
grounds";  also  in  sub.  1  after  "state" 
omit  the  semicolon  and  all  the  re- 
mainder of  the  sub.  and  insert  in  lieu 
thereof  a  comma  and  the  words  "or  is 
about  to  become  a  non-resident 
thereof";  also  in  sub.  8  near  the  end 
after  "defraud"  omit  "hinder  or  delay" 
before  "his  creditors";  also  near  the  be- 
ginning of  sub.  9  after  "fraudulently" 
insert  "or  criminally"  before  "con- 
tracted"; also  omit  entirely  subs.  10- 
and   11. 

w2  Wyoming,  §  4031,  provides  for  at- 
tachments on  debts  not  yet  due. 


Affidavit  for  attachment. 

California,  §  538.  The  clerk  of  the  court  must  issue  the  writ  of 
attachment,  upon  receiving  an  affidavit  by  or  on  behalf  of  plaintiff, 
showing : 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the 
amount  of  such  indebtedness  over  and  above  all  legal  sets-off  or 
counterclaims)  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  and  that  such  contract  was  made  or  is  payable 
in  this  state,  and  that  the  payment  of  the  same  has  not  been  secured 
by  any  mortgage  or  lien  upon  real  or  personal  property,  or  any 


Ch.  CXXIV.]  CODE  PROVISIONS.  1681 

pledge  of  personal  property,  or,  if  originally  so  secured,  that  such 
security  has,  without  any  act  of  the  plaintiff,  or  the  person  to  whom 
the  security  was  given,  become  valueless;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the 
amount  of  such  indebtedness  over  and  above  all  legal  sets-off  or 
counterclaims)  and  that  the  defendant  is  a  non-resident  of  the 
state ;  or, 

3.  That  plaintiff's  cause  of  action  against  defendant  is  one  to 
recover  a  sum  of  money  as  damages  (specifying  the  amount  thereof) 
arising  from  an  injury  to  property  in  this  state  in  consequence  of 
the  negligence,  fraud,  or  other  wrongful  act  of  defendant,  and  that 
the  defendant  is  a  non-resident  of  the  state ;  and 

4.  That  the  attachment  is  not  sought,  and  the  action  is  not  prose- 
cuted, to  hinder,  delay,  or  defraud  any  creditor  of  the  defendant. 
(Kerr's  Cyc.  Code  Civ.  Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §136.  b  Arizona,  Rev.  Stats. 
1901,  1(333.  c  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §345.  a  Colorado,  Rev. 
Stats.  1908,  C.  C.  P.  §98.  «  Hawaii,  Rev.  Laws  1905,  §1706;  Laws  1905,  p. 
184,  §3.  Mdaho,  Rev.  Codes  1909,  §4303.  g  Iowa,  Ann.  Code  1897,  §3878. 
fa  Kansas,  Gen.  Stats.  1905  (Dassler),  §5073.  I  Minnesota,  Rev.  Laws  1905, 
§  4216.  1  Missouri,  Ann.  Stats.  1906,  §  371.  k  Montana,  Rev.  Codes  1907,  §  6657. 
i  Nebraska,  Comp.  Stats.  Ann.  1909,  §  6742;  Ann.  Stats.  1909  (Cobbey),  §  1172. 
m  Nevada,  Comp.  Laws  Ann.  1900  (Cutting),  §  3219.  n  New  Mexico,  Comp. 
Laws  1897,  §  2685,  sub-sec.  185.  o  North  Dakota,  Rev.  Codes  1905,  §  6942. 
p  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §4366;  Comp.  Laws  1909 
(Snyder),  §5702.  q  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot.),  §297. 
r  South  Dakota,  Rev.  Codes  1903,  C.  C.  P.  §  207.  b  Texas,  Civ.  Stats.  1897 
(Sayles),  Arts.  186,  187.  t  Utah,  Comp.  Laws  1907,  §3066.  "Washington, 
Code  1910  (Rem.  &  Bal.),  §  648.  v  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.), 
§  2731.     w  Wyoming,  Rev.   Stats.   1899,   §  3989. 

a  Alaska,  C.  C.  P.  §  136.    A  writ  of  at-  payment  of  the  same  has  not  been  se- 

tachment  shall  be  Issued  by  the  clerk  of  cured   by   any   mortgage,    lien   or   pledge 

the  court  in   which   the  action  is  pend-  upon  real  or  personal  property;  and 
ing,  whenever  the  plaintiff  or  any  one  in  Second.  That    the   sum    for   which    the 

his   behalf   shall   make  and  file   an  affi-  attachment  is  asked   is  an  actual   bona 

davit  showing—  fide   existing  debt,   due  and  owing  from 

First  That  the   defendant   is   indebted  tne  defendant  to  the  plaintiff,   and  that 

to  the  plaintiff   (specifying   the  amount  the    attachment   is    not   sought   nor    the 

of  such  indebtedness  over  and  above  all  action    prosecuted    to    hinder,    delay,    or 

legal  set-offs  or  counterclaims)    upon  a  defraud  any  creditor  of  the  defendant, 
contract,    expressed    or   implied,    for   the  b  Arizona,     I  333.       The    clerk    of    the 

direct  payment  of  money  and   that  the  court  or  justice  of  the  peace  must  issue 


1GS2 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


the  writ  of  attachment  upon  receiving 
an  affidavit  by  or  on  behalf  of  the 
plaintiff,   showing: 

1.  That  the  defendant  is  indebted  to 
the  plaintiff  upon  a  contract,  express  or 
implied,  for  the  direct  payment  of 
money,  and  that  such  contract  was 
made  or  is  payable  in  this  territory,  and 
that  the  payment  of  the  same  has  not 
been  fully  secured  by  mortgage,  lien  or 
pledge  as  hereinbefore  provided,  or,  if 
originally  so  secured,  that  such  security 
has,  without  any  act  of  the  plaintiff  or 
the  persons  to  whom  the  security  was 
given,  become  valueless,  and  shall  spec- 
ify the  character  of  the  indebtedness, 
that  the  same  is  due  to  the  plaintiff 
over  and  above  all  legal  set-offs  or 
counterclaims,  and  that  demand  has 
been  made  for  the  payment  of  the 
amount  due,  or 

2.  That  the  defendant  is  indebted  to 
the  plaintiff,  stating  the  amount  and 
character  of  the  debt;  that  the  same  is 
due  and  payable  over  and  above  all 
legal  set-offs  and  counterclaims,  and 
that  the  defendant  is  a  non-resident  or 
is  a  foreign  corporation  doing  business 
in   this  territory;   or 

3.  That  an  action  pending  between  the 
parties,  and  that  the  defendant  is  about 
to  remove  his  property  beyond  the  juris- 
diction of  the  court  to  avoid  payment  of 
the  judgment;  and 

4.  That  the  attachment  is  not  sought 
for  a  wrongful  or  malicious  purpose,  and 
that  the  action  is  not  prosecuted  to 
hinder  or  delay  any  creditor  of  the  de- 
fendant. 

c  Arkansas,  §  345.  An  order  of  attach- 
ment shall  be  made  by  the  clerk  of  the 
court  in  which  the  action  is  brought  in 
any  case  mentioned  in  the  first  subdi- 
vision of  the  preceding  section,  where 
there  is  filed  in  his  office  an  affidavit  of 
the  plaintiff  or  of  some  one  in  his  be- 
half,  showing: 

First.  The  nature  of  the  plaintiff's 
claim. 

Second.     That  it  is  just. 

Third.  The  amount  which  the  affiant 
believes  the  plaintiff  ought  to  recover; 
and, 

Fourth.  The  existence  in  the  action 
of  some  one  of  the  grounds  for  an  at- 
tachment enumerated  in  that  subdivis- 
ion, and  in  the  case  mentioned  in  the 
second  subdivision  of  the  preceding  sec- 
tion where  it  is  shown  by  such  affidavit, 
or  by  the  return  of  the  sheriff  or  other 


officer  upon  the  order  for  the  delivery  of 
the  property  claimed,  that  the  facta 
mentioned  in  that  subdivision  exist. 

d  Colorado,  C.  C.  P.  §  98.  No  writ  of 
attachment  shall  issue  unless  the  plaint- 
iff, his  agent  or  attorney,  or  some  cred- 
ible person  for  him,  shall  file  in  the  of- 
fice of  the  clerk  of  the  court  in  which 
the  action  is  brought,  an  affidavit  set- 
ting forth  that  the  defendant  is  in- 
debted to  such  plaintiff,  stating  the  na- 
ture and  amount  of  such  indebtedness  as- 
near  as  may  be,  and  alleging  any  one  or 
more  of  the  following  causes  for  attach- 
ment,   viz.: 

First — That  defendant  is  not  a  resi- 
dent of  this  state. 

Second — That  the  defendant  is  a  for- 
eign  corporation. 

Third — That  the  defendant  is  a  corpo- 
ration whose  chief  office  or  place  of 
business  is  out  of  the  state. 

Fourth — That  the  defendant  conceals 
himself,  or  stands  in  defiance  of  an  offi- 
cer, so  that  process  of  law  cannot  be 
served  upon  him,  or  that  the  defendant 
has  for  more  than  four  months  been  ab- 
sent from  the  state,  or  that  for  such 
length  of  time  his  whereabouts  have 
been  unknown,  and  that  the  indebted- 
ness mentioned  in  the  affidavit  has  been 
due   during   all   the   said   period. 

Fifth — That  the  defendant  is  about  to 
remove  his  property  or  effects,  or  a  ma- 
terial part  thereof,  out  of  this  state, 
with  intent  to  defraud,  or  hinder,  or  de- 
lay his  creditors,  or  some  one  or  more  of 
them. 

Sixth — That  the  defendant  has  fraudu- 
lently conveyed  or  transferred  or  as- 
signed his  property  or  effects,  so  as  to 
hinder  or  delay  his  creditors,  or  some 
one  or  more  of  them. 

Seventh— That  the  defendant  has 
fraudulently  concealed  or  removed,  or 
disposed  of  his  property  or  effects,  so 
as  to  hinder  or  delay  his  creditors,  or 
some   one  or   more  of  them. 

Eighth— That  the  defendant  is  about 
to  fraudulently  convey,  or  transfer,  or 
assign  his  property  or  effects,  so  as  to- 
hinder  or  delay  his  creditors,  or  some 
one  or  more  of  them. 

Ninth — That  the  defendant  is  about  to 
fraudulently  conceal,  or  remove,  or  dis- 
pose of  his  property  or  effects,  so  as  to 
hinder  or  delay  his  creditors;  or  that 
such  debtor  has  departed,  or  is  about  to 
depart   from    this   state    with    the    in  ten- 


CI).  CXXIV.] 


CODE  PROVISIONS. 


1G8:{ 


tlon  of  having  his  effects  removed  from 
the   state. 

Tenth — That  the  defendant  has  failed 
or  refused  to  pay  the  price  or  value  of 
any  article  or  thing  delivered  to  him, 
which  he  should  have  paid  for  upon  the 
delivery   thereof. 

Eleventh— That  the  defendant  has 
failed  or  refused  to  pay  the  price  or 
value  of  any  work  or  labor  done  or  per- 
formed, or  for  any  services  rendered  by 
the  plaintiff  at  the  instance  of  the  de- 
fendant, and  which  should  have  been 
paid  at  the  completion  of  such  work,  or 
when  such  services  were  fully  rendered. 

Twelfth— That  the  defendant  fraudu- 
lently contracted  the  debt,  or  fraudu- 
lently incurred  the  liability  respecting 
which  the  suit  is  brought,  or  by  false 
representation,  or  false  pretenses,  or  by 
any  fraudulent  conduct,  procured  money 
or  property  of  the  plaintiff. 

ei  Hawaii,  §  1706,  see  note  e  to  Cal.  C. 
C.    P.    §  537. 

e2  Hawaii,  Laws  1905,  p.  1S4,  §  3.  The 
writ  of  attachment  shall  be  issued  by 
the  clerk  of  the  court  in  which  the  ac- 
tion is  pending;  but  before  any  such 
writ  of  attachment  shall  issue,  the  plaint- 
iff, or  some  one  in  his  behalf,  shall 
make  and  file  with  such  clerk  an  affi- 
davit showing  that  the  defendant  is  in- 
debted to  the  plaintiff  (specifying  the 
amount  of  such  indebtedness  over  and 
above  all  just  credits  and  offsets)  and 
that  the  attachment  is  not  sought  and 
the  action  is  not  prosecuted  to  hinder, 
delay  or  defraud  any  creditor  of  the  de- 
fendant. (Amended  Apr.  3,  1909,  Laws 
1909,    p.    75.) 

f  Idaho,  §  4303.  The  clerk  of  the  court 
must  issue  the  writ  of  attachment,  upon 
receiving  an  affidavit  by  or  on  behalf  of 
plaintiff,   setting  forth: 

1.  That  the  defendant  is  indebted  to 
the  plaintiff  (specifying  the  amount  of 
such  indebtedness  over  and  above  all 
legal  set-offs  or  counterclaims)  and 
■whether  upon  a  judgment  or  upon  a 
contract  for  the  direct  payment  of 
money,  and  that  the  payment  of  the 
same  has  not  been  secured  by  any 
mortgage  or  lien  upon  real  or  personal 
property,  or  any  pledge  of  personal  prop- 
erty, or,  if  originally  secured,  that  such 
security  has,  without  any  act  of  the 
plaintiff,  or  the  person  to  whom  the  se- 
curity  was   given,    become  valueless;    or 

2.  [Sub.  2  same  as  Cal.  C.  C.  P.  §  538.] 


Omit  sub.  3  of  Cal.  statute;  sub.  3  of 
Idaho  same  as  sub.  4  Cal.  C.  C.  P.  S  538. 
g  Iowa,  §  3S7S.  The  petition  which 
asks  an  attachment  must  in  all  cases  be 
sworn  to.  It  must  state  one  or  more  of 
the   following  grounds: 

1.  That  the  defendant  is  a  foreign 
corporation   or  acting  as   such; 

2.  That  he  is  a  non-resident  of  the 
state; 

3.  That  he  is  about  to  remove  his 
property  out  of  the  state  without  leav- 
ing sufficient  remaining  for  the  payment 
of  his  debts; 

4.  That  he  has  disposed  of  his  prop- 
erty, in  whole  or  in  part,  with  intent  to 
defraud   his   creditors; 

5.  That  the  defendant  is  about  to  dis- 
pose of  his  property  with  intent  to  de- 
fraud his  creditors; 

6.  That  he  has  absconded,  so  that  the- 
ordinary  process  cannot  be  served  upon 
him; 

7.  That  he  is  about  to  remove  perma- 
nently out  of  the  county,  and  has  prop- 
erty therein  not  exempt  from  execution, 
and  that  he  refuses  to  pay  or  secure  the 
plaintiff; 

8.  That  he  is  about  to  remove  perma- 
nently out  of  the  state,  and  refuses  to 
pay  or  secure  the  debt  due  the  plaintiff; 

9.  That  he  is  about  to  remove  his 
property  or  a  part  thereof  out  of  the 
county  with  intent  to  defraud  his  cred- 
itors; 

10.  That  he  is  about  to  convert  his 
property  or  a  part  thereof  into  money 
for  the  purposes  of  placing  it  beyond  the 
reach  of  his  creditors; 

11.  That  he  has  property  or  rights  in 
action  which  he  conceals; 

12.  That  the  debt  is  due  for  property 
obtained  under  false  pretenses. 

The  causes  for  the  attachment  shall 
not  be  stated  in   the  alternative. 

h  Kansas,  §  5073.  An  order  of  attach- 
ment shall  be  issued  by  the  clerk  of  the- 
court  in  which  the  action  is  brought  in 
any  case  mentioned  in  the  preceding 
section,  when  there  is  filed  in  his  office 
an  affidavit  of  the  plaintiff,  his  agent  or 
attorney,  showing:  first,  the  nature  of 
the  plaintiff's  claim;  second,  that  it  is 
just;  third,  the  amount  which  the  affiant 
believes  the  plaintiff  ought  to  recover; 
and  fourth,  the  existence  of  some  one  of 
the  grounds  for  an  attachment  enumer- 
ated in  the  preceding  section.  (Amended 
Mch.  12,  1909,  Laws  1909,  p.  329,  C.  C.  P. 
5  191.) 


1684 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


I  Minnesota,  §  4216.  To  obtain  such 
writ,  the  plaintiff,  his  agent  or  attorney, 
shall  make  affidavit  that  a  cause  of  ac- 
tion exists  against  the  defendant  speci- 
fying the  amount  of  the  claim  and  the 
ground  thereof,   and  alleging: 

1.  That  the  debt  was  fraudulently  con- 
tracted; or 

2.  That  defendant  is  a  foreign  corpo- 
ration, or  not  a  resident  of  this  state;  or 

3.  That  he  has  departed  from  the 
state,  as  affiant  verily  believes,  with  in- 
tent to  defraud  or  delay  his  creditors,  or 
to  avoid  the  service  of  a  summons,  or 
keeps  himself  concealed  therein  with 
like   intent;    or 

4.  That  he  has  assigned,  secreted,  or 
disposed  of  his  property,  or  is  about  to 
do  so,  with  intent  to  delay  or  defraud 
his  creditors. 

J  Missouri,  §  371.  The  affidavit  shall 
be  made  by  the  plaintiff,  or  some  per- 
son for  him,  and  shall  state  that  the 
plaintiff  has  a  just  demand  against  the 
defendant,  and  that  the  amount  which 
the  affiant  believes  the  plaintiff  ought  to 
recover,    after    allowing    all    just   credits 

and   set-offs,   is  dollars,   and  that 

he  has  good  reason  to  believe,  and  does 
believe,  in  the  existence  of  one  or  more 
of  the  causes  which,  according  to  the 
provisions  of  section  366  of  this  chap- 
ter, would  entitle  the  plaintiff  to  sue  by 
attachment. 

k  Montana,  §  6657,  same  as  Cal.  C.  C. 
P.  §  538,  except  omit  subs.  2  and  3  of 
Cal.  statute  and  renumber  sub.  4  to 
sub.  2. 

l  Nebraska,  §  6742,  same  as  Kansas 
§  5073  (as  amended  in  1909,  C.  C.  P. 
5  191),  except  in  the  second  line  change 
"issued"  to  "made." 

m  Nevada,  %  3219.  The  clerk  of  the 
court  shall  issue  the  writ  of  attachment 
upon  receiving  and  filing  an  affidavit  by 
or  on  behalf  of  the  plaintiff  showing  the 
nature  of  the  plaintiff's  claim,  that  same 
is  just,  the  amount  which  the  affiant  be- 
lieves the  plaintiff  is  entitled  to  recover, 
and  the  existence  of  any  one  of  the 
grounds  for  an  attachment  enumerated 
in   the   preceding  section. 

n  New  Mexico,  §  2685,  sub-sec.  185.  The 
affidavit  shall  be  made  by  the  plaintiff, 
or  some  person  for  him,  and  shall  state 
that  the  defendant  is  justly  indebted  to 
the  plaintiff,  after  allowing  all  just  cred- 
its and  offsets,  in  a  sum  (to  be  speci- 
fied in  the  affidavit),  and  on  what 
account,    and    shall    also    gtate    that    the 


affiant  has  good  reason  to  believe,  and 
does  believe,  the  existence  of  one  or 
more  of  the  causes,  which,  according  to 
the  provision  of  sub-section  182,  will  en- 
title the  plaintiff  to  sue  by  attachment. 
(Laws   1907,   p.   271.) 

o  North  Dakota,  §  6942.  The  warrant 
shall  issue  upon  a  verified  complaint, 
setting  forth  a  proper  cause  of  action 
for  attachment  in  favor  of  the  plaintiff 
and  against  the  defendant,  and  an  affi- 
davit, setting  forth  in  the  language  of 
the  statute  one  or  more  of  the  grounds 
of  attachment  enumerated  in  section 
6938,  if  the  claim  is  due  upon  which  the 
action  is  commenced;  and  if  not  due, 
one  or  more  of  the  grounds  of  attach- 
ment enumerated  in  subdivisions  3,  4,  6, 
and  7  of  that  section. 

p  Oklahoma,  §  4366,  same  as  Kansas 
§  5073,  as  amended  in  1909,  C.  C.  P.  §  191, 
except  in  the  second  line  change  "is- 
sued" to  "made." 

q  Oregon,  §  297.  A  writ  of  attachment 
shall  be  issued  by  the  clerk  of  the  court 
in  which  the  action  is  pending  whenever 
the  plaintiff,  or  any  one  in  his  behalf, 
shall  make  and  file  an  affidavit  showing-, 
first,  that  the  defendant  is  indebted  to 
the  plaintiff,  specifying  the  amount  of 
such  indebtedness  over  and  above  all 
legal  set-offs  or  counterclaims  upon  a 
contract  for  the  payment  of  money;  and, 
second,  either  (1)  that  the  payment  of 
the  same  has  not  been  secured  by  any 
mortgage,  lien,  or  pledge  upon  real  or 
personal  property;  or  (2)  that  the  same 
was  secured  by  a  mortgage,  lien,  or 
pledge  (as  the  case  may  be),  but  that 
such  security  has  been  rendered  nuga- 
tory by  the  act  of  the  defendant;  or  (3) 
that  the  defendant  is  a  non-resident  of 
the  state;  third,  that  the  sum  for  which 
the  attachment  is  asked  is  an  actual 
bona  fide  existing  debt,  due  and  owing 
from  the  defendant  to  the  plaintiff,  and 
that  the  attachment  is  not  sought  nor 
the  action  prosecuted  to  hinder,  delay 
nor  defraud  any  creditor  of  the  defend- 
ant. 

r  South  Dakota,  C.  C.  P.  $  207.  The 
warrant  may  issue  upon  affidavit,  stat- 
ing: 

1.  That  a  cause  of  action  exists 
against  such  defendant  specifying  the 
amount  of  the  claim  and  the  grounds 
thereof;  and, 

2.  That  the  defendant  is  either  a  for- 
eign corporation,  and  has  not  complied 
with   the  laws  of   this   state  relative   to 


vjh.  CXXIV.] 


CODE  PROVISIONS. 


168o 


the  appointment  of  agents  upon  whom 
service  of  process  may  be  made,  or  is 
not  a  resident  of  this  state,  or  has  de- 
parted therefrom  with  intent  to  defraud 
his  creditors,  or  to  avoid  the  service  of 
summons,  or  keeps  himself  concealed 
therein  with  the  like  intent;  or 

3.  That  the  debt  was  incurred  for 
property  obtained  under  false  pretenses; 
or, 

4.  That  such  corporation  or  person  has 
removed,  or  is  about  to  remove,  any  of 
his  or  its  property  from  this  state  with 
Intent  to  defraud  his  or  its  creditors;  or, 

5.  Has  assigned,  disposed  of,  or  se- 
creted, or  is  about  to  assign,  dispose  of, 
or  secrete,  any  of  his  or  its  property 
with  the  like  intent,  whether  such  de- 
fendant be  a  resident  of  this  state  or 
not. 

s  Texas,  Art.  186,  187,  see  note  s  to  Cal. 
C.    C.    P.    §  537. 

t  Utah,  §  3066.  The  clerk  of  the  court 
shall  issue  the  writ  of  attachment  upon 
receiving  an  affidavit  by  or  on  behalf  of 
the  plaintiff,  which  shall  be  filed,  setting 
forth : 

1.  That  the  defendant  is  indebted  to 
the  plaintiff,  specifying  the  amount  of 
such  indebtedness  as  near  as  may  be  over 
and  above  all  legal  counterclaims,  and 
whether  upon  a  judgment  or  an  express 
or  implied  contract,  and  that  the  pay- 
ment of  the  same  has  not  been  secured 
by  any  mortgage  or  lien  upon  real  or 
personal  property,  or  any  pledge  of  per- 
sonal property,  situate  or  being  in  this 
state;  or,  if  originally  so  secured,  that 
such  security  has,  without  any  act  of 
the  plaintiff,  or  the  person  to  whom  the 
security  was  given,  become  valueless; 
and  that  the  same  is  an  actual  bona 
fide  existing  demand  due  and  owing 
from  the  defendant  to  the  plaintiff; 

2.  And  in  all  cases  that  the  attach- 
ment is  not  sought  and  the  action  is  not 
prosecuted  to  hinder,  delay,  or  defraud 
any  creditor  of  the  defendant,  and  also 
specifying  one  or  more  of  the  causes  set 
forth  in  §  3064  as  the  ground  of  the  at- 
tachment. 

u  Washington,  §648.  The  writ  of  at- 
tachment shall  be  issued  by  the  clerk  of 
the  court  in  which  the  action  is  pend- 
ing; but  before  any  such  writ  of  attach- 
ment shall  issue,  the  plaintiff,  or  some 
one  in  his  behalf,  shall  make  and  file 
with  such  clerk  an  affidavit  showing 
that  the  defendant  is  indebted  to  the 
plaintiff  (specifying  the  amount  of  such 

Jury's  PL— 107. 


indebtedness  over  and  above  all  Just 
credits  and  offsets),  and  that  the  attach- 
ment is  not  sought  and  the  action  la 
not  prosecuted  to  hinder,  delay,  or  de- 
fraud any  creditor  of  the  defendant,  and 
either. — 

1.  That  the  defendant  is  a  foreign  cor- 
poration;   or 

2.  That  the  defendant  is  not  a  resident 
of  this  state;  or 

3.  That  the  defendant  conceals  himself 
so  that  the  ordinary  process  of  law  can 
not  be  served  upon  him;   or 

4.  That  the  defendant  has  absconded 
or  absented  himself  from  his  usual  place 
of  abode  in  this  state,  so  that  the  ordi- 
nary process  of  law  can  not  be  served 
upon   him;   or 

5.  That  the  defendant  has  removed  or 
is  about  to  remove  any  of  his  property 
from  this  state,  with  intent  to  delay  or 
defraud  his  creditors;  or 

6.  That  the  defendant  has  assigned, 
secreted,  or  disposed  of,  or  is  about  to 
assign,  secrete,  or  dispose  of,  any  of  his 
property,  with  intent  to  delay  or  defrauc 
his  creditors;  or 

7.  That  the  defendant  is  about  to  con- 
vert his  property,  or  a  part  thereof,  into 
money,  for  the  purpose  of  placing  it  be- 
yond the  reach  of  his  creditors;  or 

8.  That  the  defendant  has  been  guilty 
of  a  fraud  in  contracting  the  debt  or  in- 
curring the  obligation  for  which  the  ac- 
tion is  brought;  or 

9.  That  the  damages  for  which  the  ac- 
tion is  brought  are  for  injuries  arising 
from  the  commission  of  some  felony,  or 
for  the  seduction  of  some  female. 

v  Wisconsin,  §  2731.  Before  any  writ 
of  attachment  shall  be  executed  the 
plaintiff  or  some  one  in  his  behalf  shall 
make  and  annex  thereto  an  affidavit 
stating  that  the  defendant  named  in 
such  writ  is  indebted  to  the  plaintiff  in 
a  sum  exceeding  fifty  dollars,  and  speci- 
fying the  amount  of  such  indebtedness 
as  near  as  may  be,  over  and  above  all 
legal  set-offs,  and  that  the  same  is  due 
upon  contract,  express  or  implied,  or 
upon  judgment  or  decree,  and  contain- 
ing a  further  statement  that  the  depo- 
nent knows  or  has  good  reason  to  be- 
lieve either: 

1.  That  the  defendant  has  absconded 
or  is  about  to  abscond  from  this  state, 
or  is  concealed  therein,  to  the  injury  of 
his  creditors,  or  keeps  himself  concealed 
therein  with  intent  to  avoid  the  serv- 
ice of  &  summons;   or 


1686 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


2.  That  the  defendant  has  assigned, 
conveyed,  disposed  of  or  concealed  or  is 
about  to  assign,  convey,  dispose  of  or 
conceal  his  property  or  any  part  thereof 
with   intent  to  defraud  his  creditors;   or 

3.  That  the  defendant  has  removed  or 
is  about  to  remove  any  of  his  property 
out  of  the  state  with  intent  to  defraud 
his    creditors;    or 

4.  That  the  defendant  fraudulently 
contracted  the  debt  or  incurred  the  ob- 
ligation respecting  which  the  action  is 
brought;    or 

5.  That  the  defendant  is  not  a  resi- 
dent of  this   state;   or 

6.  That  the  defendant  is  a  foreign  cor- 
poration; or  if  created  under  the  laws  of 
this  state  that  all  proper  officers  thereof 
on  whom  to  serve  the  summons  do  not 
exist,  are  non-residents  of  the  state  or 
can  not  be  found;  or 

7.  That  the  action  is  brought  against 
a  defendant  as  principal  on  an  official 
bond  to  recover  money  due  the  state  or 
to  some  county  or  other  municipality 
therein,  or  that  the  action  is  brought 
against  the  defendant  as  principal  upon 
a  bond  or  other  instrument  given  as  evi- 
dence of  indebtedness  for  or  to  secure 
the  payment  of  money  embezzled  or 
misappropriated  by  such  defendant  and 
whilst  acting  as  an  officer  of  the  state 
or  of  any  county  or  municipality  therein. 

Or,  an  affidavit  stating  that  a  cause  of 
aotion  sounding  in  tort  exists  in  favor 
of  the  plaintiff  and  against  the  defend- 
ant named  in  such  writ,   that   the  dam- 


ages sustained  and  claimed  exceed  the 
sum  of  fifty  dollars,  specifying  the 
amount  claimed,  and  the  further  state- 
ment,   either: 

1.  That  the  defendant  or  any  of  the 
defendants  is  not  or  are  not  residents 
of  this  state  or  that  his  or  their  resi- 
dence is  unknown  and  can  not  with  due 
diligence  be  ascertained,  or 

2.  That  the  defendant  is  a  foreign  cor- 
poration. 

An  action  may  be  maintained  and  a 
writ  of  attachment  issued  on  a  demand 
not  yet  due  in  any  cases  mentioned  in 
this  section,  except  the  cases  mentioned 
in  the  fifth,  sixth  and  seventh  subdivis- 
ions, and  the  same  proceedings  in  the 
action  shall  be  had  and  the  same  affi- 
davit shall  be  required  as  in  actions 
upon  matured  demands  except  that  the 
affidavit  shall  state  that  the  debt  is  to 
become  due;  provided,  that  the  under- 
taking specified  in  section  2732  shall  be 
conditioned  in  three  times  the  amount 
demanded.  In  case  an  attachment  be 
issued  before  the  maturity  of  the  debt 
and  a  traverse  to  such  attachment  is 
sustained  the  court  shall  dismiss  the  ac- 
tion and  shall  render  a  judgment  of 
costs   against   the   plaintiff. 

w  Wyoming,  §  39S9,  substantially  same 
as  Kansas  §  5073,  as  amended  in  1909,  C. 
C.  P.  §  191,  except  in  the  second  line 
change  "issued"  to  "made";  also  at  the 
end  add  "or  that  the  affiant  has  good 
reason  to  believe  and  does  believe  that 
some  one  or  more  of  said  grounds  (stat- 
ing which  ones)  exists." 


Action  upon  undertaking  in  attachment. 
California,  §  552.  If  the  execution  be  returned  unsatisfied,  in  whole 
or  in  part,  the  plaintiff  may  prosecute  any  undertaking  given  pur- 
suant to  section  five  hundred  and  forty  or  section  five  hundred  and 
fifty-five,  or  he  may  proceed,  as  in  other  cases,  upon  the  return  of 
an  execution.     (Kerr's  Cyc.  Code  Civ.  Proc.) 

[Sections  540  and  555  Cal.  C.  C.  P.,  referred  to  in  the  foregoing  section,  provide 
for  the  giving  of  bonds  to  secure  releases.] 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  In  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arizona,  Rev.  Stats.  1901,  11360.  b  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
§§  389,  390.  Idaho,  Rev.  Codes  1909,  §  4317.  c  |0wa,  Ann.  Code  1897,  §  3908. 
a  Kansas,  Gen.  Stats.  1905  (Dassler),  §5118.  e  Missouri,  Ann.  Stats.  1906, 
88  419.  420.     Montana,  Rev.  Codes  1907,  §  6677.    t  Nebraska,  Comp.  Stats.  Ann. 


Ch.  CXXIV.] 


CODE  PROVISIONS. 


168 1 


1909,  §6772;  Ann.  Stats.  1909  (Cobbey),  §1202.  Nevada,  Comp.  Laws  Ann. 
1900  (Cutting),  §3232.  e  New  Mexico,  Comp.  Laws  1897,  §2685,  sub-sec.  226. 
h  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §4410;  Comp.  Laws  1909 
(Snyder),  §5746.  i  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot),  §309. 
J  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  215.  Utah,  Comp.  Laws  1907,  §3082. 
i  Washington,  Code  1910  (Rem.  &  Bal.),  §672.  i  Wyoming,  Rev.  Stats.  1899, 
§  4023. 


a  Arizona,  fl  360.  When  personal  prop- 
erty has  been  replevied  as  hereinbe- 
fore provided,  the  judgment  shall  also 
be  against  the  defendant  and  his  sure- 
ties on  his  replevy  bond  for  the  amount 
of  the  judgment,  interest  and  costs,  or 
for  the  value  of  the  property  replevied 
and  interest  according  to  the  terms  of 
such  replevy  bond. 

bi  Arkansas,  §  389.  If  the  plaintiff 
shah  recover  against  the  defendant,  and 
the  attachment  shall  have  been  dis- 
charged upon  the  execution  of  a  bond,  as 
provided  by  section  372,  then  the  court 
shall  render  judgment  against  the  de- 
fendant and  his  sureties  in  said  bond  for 
the  amount  recovered  and  the  cost  of  the 
suit. 

t>2  Arkansas,  §  390.  If  the  defendant 
shall  have  given  bond  for  the  retention 
of  the  property  attached,  as  provided  by 
section  362,  and  the  attachment  shall  be 
sustained,  the  court  or  jury,  in  addition 
to  finding  the  amount  of  debt  or  damages 
due  to  the  plaintiff,  shall,  upon  demand 
of  the  plaintiff,  also  assess  the  value  of 
the  property  attached,  and  the  court 
shall,  in  addition  to  judgment  against 
the  defendant  for  the  amount  due  to  the 
plaintiff  and  costs,  render  further  judg- 
ment, that  in  case  said  property  shall 
not  be  delivered  up  to  the  proper  officer 
to  be  sold,  and  said  officer  shall  not  be 
able  to  make  said  judgment  out  of  the 
property  of  said  defendant,  execution 
shall  then  issue  against  the  property  of 
said  sureties  for  so  much  of  said  judg- 
ment as  shall  not  exceed  the  value  of 
said  property,  which  execution  shall  be 
enforced  as  in  other  cases. 

c  Iowa,  §  3908.  Such  bond  shall  be  part 
of  the  record.  If  judgment  go  against 
the  defendant,  the  same  shall  be  entered 
against  him  and  sureties. 

<J  Kansas,  §  5118.  The  court  or  judge 
thereof  may  compel  the  delivery  to  the 
sheriff  for  sale  of  the  attached  property 
for  whicn  an  undertaking  may  have  been 
given,  and  may  proceed  summarily  on 
such  undertaking  to  enforce  the  delivery 
of  the  property  or  the  payment  of  such 


sum  as  may  be  due  upon  the  undertak- 
ing, by  rules  and  attachments  as  in 
cases  of  contempt.  (Amended  Mch.  12, 
1909,  Laws  1909,  p.  329,  C.  C.  P.  §  211.) 

ei  Missouri,  §  419.  Whenever  it  shall 
appear  from  the  return  of  tne  officer 
upon  an  execution  issued  in  an  attach- 
ment suit,  that  none  of  the  property  at- 
tached has  been  found,  or  only  a  part 
thereof,  and  that  said  execution  is  not 
fully  satisfied,  the  court  or  justice  shall 
direct  the  officer  to  assign  to  the  plaint- 
iff, his  executor  or  administrator,  the 
bonds  taken  by  him  for  the  forthcom- 
ing of  the  property  attached;  and  such 
court  or  justice  may,  upon  motion,  ren- 
der judgment  in  favor  of  the  plaintiff, 
his  executor  or  administrator,  against 
the  obligors  in  the  bond,  for  the  value 
of  such  property,  or  if  the  value  of  such 
property  should  be  greater  than  the 
amount  due  upon  execution,  then  for 
the  amount  due,  together  with  twenty 
per  cent  damages  upon  such  value  or 
amount. 

e2  Missouri,  §420.  No  judgment  shall 
be  rendered  upon  such  motion  unless  the 
plaintiff  shall  have  given  the  obligors  in 
the  bond  at  least  fifteen  days*  notice,  in 
writing,   of  such   motion. 

f  Nebraska,  §  6772,  substantially  same 
as  Kansas  §  5118  as  amended  1909.  G.  C. 
P.  §  211,  except  in  line  1  omit  "or  judge 
thereof." 

g  New  Mexico,  §  2685.  sub-sec.  226.  If 
upon  the  trial  of  said  cause  judgment 
shall  be  rendered  against  the  defendant 
on  the  demand  sued  for,  such  judgment 
shall  also  be  rendered  against  the  sure- 
ties on  said  bond  given  for  the  discharge 
of  said  attachment;  and  the  giving  of 
said  bond  shall  have  the  effect  of  con- 
ferring jurisdiction  upon  the  court  to 
render  said  judgment  against  the  said 
sureties,  for  the  amount  of  the  damages 
recovered  against  the  defendant,  with- 
out further  process  or  notice.  (Laws 
1907,    p.   279  v 

h  Oklahoma,  §  4410,  same  as  Nebraska 
§  6772. 

i  Oregon,    §  309.     If  judgment  is  recov- 


1688 


ATTACHMENT  AND  GARNISHMENT.  [Tit.  XV. 


ered  by  the  plaintiff,  and  it  shall  appear  by  the  defendant  as  provided  by  section 

that  property  has  been   attached   in   the  312,  the  court  shall  upon  giving  judgment 

action,  and  has  not  been  sold  as  perish-  against  the  defendant  or  defendants  also 

able  property  or  discharged  from  the  at-  give  judgment  in  like  manner  and  with 

tachment  as  provided  by  law,   the  court  like   effect   against    the    surety   or   sure- 

shall  order  and  adjudge  the  property  to  ties    in    such    undertaking.       (Amended 

be  sold  to  satisfy  the  plaintiffs  demands,  Feb.  25,  1907,  General  Laws  1907,  p.  356.) 

and  if  execution  issue  thereon,  the  sher-  j  Texas,    Art.    215,    same    as    Arizona 

iff  shall  apply  the  property  attached  by  ^  360(   except  in  the  second  line  change 

him   or  the   proceeds   thereof,    upon    the  "replevied"  to  "levied  on." 

execution,  and  if  there  be  any  such  prop-  .                                                     ... 

erty  or  proceeds  remaining  after  satis-  *  Washington,   §672      Such  bond  shal 

tying  such  execution,  he  shall,  upon  de-  be  a  part  of  the  record,  and  If  Judgment 

mand,   deliver  the  same  to   the  defend-  S°  against  the  defendant,  the  same  shall 

ant;    or   if   the   property   attached    shall  be  entered  against  mm  and  sureties, 

have  been  released  from  attachment  by  l  Wyoming,    §4023,   substantially  same 

reason  of  the  giving  of  the  undertaking  as  Nebraska  §  6772. 

§429.     AFFIDAVITS. 

FORM   No.  1021— For  attachment  against  residents.     (Common  form— Alaska, 
Arizona,  California,  Hawaii,  Idaho,  Oregon,  Utah.)i 

[Title  of  court  and  cause.] 

[Venue.] 

,  the  plaintiff  in  the  action  above  named,  being  duly  sworn, 
deposes   and   says:    That   the    defendant   above   named,  ,    is 

indebted  to  ,  the  plaintiff,  in  a  certain  sum,  that  is  to  say,  in 

the  sum  of  $  ,  over  and  above  all  legal  set-offs  and  counter- 

claims upon  [state  whether  an  express  or  implied]  contract  for  the 
direct  payment  of  money  to  wit :  [Here  state  the  nature  of  the  con- 
tract, whether  a  note,  bond,  etc.]  ;  and  that  such  contract  was  made 
[or  is  payable]  in  this  state,  and  that  the  payment  of  the  same  has 
not  been  secured  by  any  mortgage  or  lien  upon  real  or  personal  prop- 
erty, or  any  pledge  of  personal  property.  [Or,  if  originally  so 
secured,  state  the  facts,  and  further  depose:  "that  said  security 
has,  without  any  act  of  the  plaintiff,  this  affiant,  become  and  is  abso- 
lutely valueless"  (or,  in  Oregon,  "nugatory").] 

And  this  deponent  further  says:  That  the  sum  for  which  the 
attachment  is  asked  in  the  cause,  that  is  to  say,  the  amount  of  indebt- 
edness which  is  above  stated,  is  an  actual,  bona  fide  existing  debt, 
due  and  owing  from  the  defendant  to  the  plaintiff;  and  that  the 
attachment  is  not  sought,  and  the  action  is  not  prosecuted,  to  hinder, 

i  The  above  form  states  generally  the  matters  required  by  the  statutes  in  the 
states  or  territories  named.  Reference  should  be  made  to  the  particular  statutes 
for  any  particular  wording:  See  Cal.  C.  C.  P.  I  538,  notes,  a  Alaska,  b  Arizona, 
c  Hawaii,  t  Idaho,  q  Oregon,  t  Utah. 


Ch.  CXXIV.]  AFFIDAVITS.— FORMS.  1G89 

delay,  or  defraud  any  creditor  or  creditors  of  defendant.     [Adding, 
in  Arizona,  statement  as  to  demand  made.] 

Subscribed  and  sworn  to  before  me,  this  day  of  ,  19     . 

[Seal.]  E.  F.,  Clerk. 

[Filing  endorsement.] 


FORM   No.  1022 — For  attachment  against  non-resident,  upon  a  contract. 

[Title  of  court  and  cause.] 

[Venue.] 

A.  B.,  being  duly  sworn,  deposes  and  says :  That  he  is  the  plaintiff 
in  the  above-entitled  action;  that  the  defendant  is  indebted  to  the 
plaintiff  in  the  sum  of  $  ,  over  and  above  all  legal  set-offs  and 

counterclaims,  upon  an  express  [or  implied]  contract  [briefly  de- 
scribing the  same]  ;  that  the  defendant  is  a  non-resident  of  the  state 
of  [California],  to  wit,  a  resident  of  the  state  of  ;  that  the  said 

sum  for  which  the  attachment  is  asked  and  sought  herein  is  an 
actual,  bona  fide  existing  debt,  due  and  owing  from  the  defendant 
to  the  plaintiff;  that  the  said  attachment  is  not  sought,  and  said 
action  is  not  prosecuted,  to  hinder,  delay,  or  defraud  any  creditor  or 
creditors  of  the  defendant. 

[Signature  of  affiant.] 

[Jurat.] 

FORM   No.  1023 — For  attachment  against  resident.      (Nebraska. )i 

(In  Tessier  v.  Reed,  Jones  &  Co.,  17  Neb.  105;  22  N.  W.  225.) 

[Title  of  court  and  cause.] 

[Venue.] 

,  being  duly  sworn,  deposes  and  says :  That  he  is  one  of  the 
attorneys  for  the  plaintiff;  that  the  plaintiff  has  commenced  an  action 
against  one  ,  in  the  district  court  of  the  county  of  ,  to 

recover  the  sum  of  $  ,  now  due  and  payable  to  the  plaintiff 

from  the  defendant  upon  an  account  for  goods  sold  and  delivered 
by  the  plaintiff  to  the  defendant  at  his  request;  that  said  claim  is 
just,  and  that  plaintiff  ought,  as  he  believes,  to  recover  thereon  the 
sum  of  $  ;  that  the  defendant  is  about  to  convert  his  property, 

l  As  will  be  seen  from  the  code  provisions  (§  428),  the  form  of  affidavit  for  attach- 
ment for  the  states  of  Kansas,  Missouri,  Oklahoma,  and  Wyoming  is  substantially 
•.he  same  as  that  used  in  Nebraska. 


1690  ATTACHMENT  AND  GARNISHMENT.  [Tit.  XV. 

or  a  part  thereof,  into  money  for  the  purpose  of  placing  it  beyond  the 
reach  of  his  creditors. 

[Signature  of  affiant.] 
[Jurat.] 

FORM  No.  1024 — For  attachment  against  non-resident,  where  the  cause  of 
action  is  to  recover  damages  arising  from  an  injury  to 
property  in  the  state,  in  consequence  of  fraud,  negli- 
gence, or  other  wrongful  act. 

[Title  of  court  and  cause.] 

[Venue.] 

A.  B.,  being  duly  sworn,  deposes  and  says :  That  he  is  the  plaintiff 
in  the  above-entitled  action ;  that  the  defendant  is  a  non-resident  of 
this  state,  he  being  a  resident  of  the  state  of  ;  that  a  cause  of 

action  exists  in  favor  of  the  plaintiff  and  against  the  defendant  for 
damages  in  the  sum  of  $  [here  specifying],  for  an  injury  to 

[here  describe],  the  property  of  the  plaintiff,  situated  at  ,  in 

this  state;  that  the  said  cause  of  action  is  to  recover  said  sum  of 
money  as  damages  arising  from  said  injury,  and  that  said  injury  to 
said  property  was  caused  by  the  negligence  [or  fraud,  or  other 
wrongful  act]  of  the  defendant,  in  this  [here  specify  the  circum- 
stances of  such  negligent  or  fraudulent  or  other  wrongful  act]  ;  that 
this  attachment  is  not  sought,  and  said  action  is  not  prosecuted,  to 
hinder,  delay,  or  defraud  any  creditor  or  creditors  of  the  defendant. 

[Signature  of  affiant.] 

[Jurat.] 

FORM  No.  1025 — For  attachment  against  non-resident,  for  unliquidated  dam- 
ages ascertainable  under  a  contract. 

(In  Coats  v.  Arthur,  5  S.  Dak.  275;  58  N.  W.  675.) 

[Title  of  court  and  cause.] 

[Venue,  etc.] 

That  a  cause  of  action  exists  against  the  defendant  and  in  favor 
of  the  plaintiff  herein;  that  the  amount  of  said  plaintiff's  claim 
herein  is  $968,  and  the  ground  thereof  is  as  follows :  That  is  to  say, 
that  on  or  about  May  9,  1891,  at  Chicago,  Illinois,  the  defendant,  for 
a  valuable  consideration,  sold,  and  conveyed  by  warranty  deed,  to 
the  plaintiff  the  following  premises,  situated  in  Chicago,  Cook 
County,  Illinois,  to  wit:    [Here  follows  description.]    That  defend- 


Ch.  CXXIV.]  AFFIDAVITS.— FORMS.  1691 

ant  then  and  there  agreed  to  and  with  the  plaintiff  to  complete  the 
buildings  upon  said  premises,  and  to  surrender  to  the  plaintiff  the 
keys  and  possession  of  said  premises,  not  later  than  May  12,  1891 ; 
that  the  defendant  thereafter  failed  and  neglected  to  complete  said 
buildings,  and  to  surrender  to  the  plaintiff  the  keys  and  possession 
of  said  premises,  until  August  1,  1891,  at  which  last-named  date  the 
same  were  delivered  to  the  plaintiff;  that  thereby  the  plaintiff  was 
deprived  of  the  use  and  rent  of  said  premises  from  and  after  May 
12,  1891 ;  that  the  rental  value  of  said  premises  from  and  after  May 
12,  1891,  was  and  is  the  sum  of  $180  per  month,  amounting  to  $474 
to  August  1,  1891 ;  that  since  said  last-named  date,  by  reason  of  the 
unfavorable  season  of  the  year  for  that  purpose,  the  plaintiff  has  not 
been  able,  although  he  had  made  diligent  efforts  for  that  purpose,  to 
rent  said  premises  for  so  large  a  sum,  by  $130  per  month,  as  he 
would  if  the  same  had  been  delivered  to  him  at  the  time  agreed,  to 
plaintiff's  damage  in  the  additional  sum  of  $494,  from  August  1  to 
November  24,  1891,  making  the  total  amount  of  damages  sustained 
by  the  plaintiff  from  May  12  to  November  24,  1891,  by  reason  of 
defendant's  failure  to  complete  said  buildings,  and  to  surrender  the 
keys  and  possession  of  said  premises  to  plaintiff,  at  the  agreed  time 
therefor,  to  wit,  May  12,  1891,  the  sum  of  $968 ;  that  the  defendant, 
L.  J.  Arthur,  is  not  a  resident  of  this  state,  but  resides  at  the  city  of 
Evanston,  county  of  Cook,  and  state  of  Illinois. 

[Signature.] 
[Jurat  of  Notary.] 

FORM   No.  1026 — For  attachment  against  defendant  about  to  leave  the  state 
with  intent  to  defraud  creditors. 
(In  Gans  v.  Beasley,  4  N.  Dak.  140;  59  N.  W.  714.)1 

[Venue.] 

Joseph  Gans  came  before  me  personally,  and,  being  first  duly 
sworn,  doth  say :  That  he  is  the  plaintiff  in  the  above-entitled  action, 
which  is  brought  for  the  recovery  of  money,  and  a  summons  has  been 
issued  therein;  that  a  cause  of  action  exists  against  the  defendants 
and  in  favor  of  said  plaintiff  therein,  and  the  amount  of  said  plaint- 

i  An  amendment  to  the  affidavit  for  attachment  in  Gans  v.  Beasley,  supra,  was 
made  for  the  purpose,  among  other  things,  of  setting  forth  in  terms  that  the  note 
was  executed  by  the  defendants  and  delivered  by  them  to  the  plaintiff,  and  that  no 
part  of  the  note  had  been  paid,  etc.  Held,  that  the  proposed  amendment  is  super- 
fluous, and  added  no  new  feature,  as  the  facts  included  in  the  amendment  are 
averred  by  necessary  implication  in  the  original  affidavit:  Gans  v.  Beasley,  4  N. 
Dak.   140,   59  N.  W.  714. 


1692  ATTACHMENT  AND  GARNISHMENT.  [Tit.  XV. 

iff 's  claim  therein  is  $10,000,  with  interest  thereon  since  October  20,. 
at  ten  per  cent  per  annum,  and  the  ground  thereof  is  as  follows,  that 
is  to  say:  defendant's  promissory  note  to  plaintiff,  as  follows,  to 
wit:  "$10,000.  Billings,  Montana,  October  20,  1892.  First  day  of 
July,  1893,  after  date,  for  value  received,  we  jointly  and  severally 
promise  to  pay  to  the  order  of  Joseph  Gans  $10,000,  with  interest  at 
ten  per  cent  per  annum  from  date  until  paid,  and  with  attorneys* 
fees  in  addition  to  the  costs,  in  case  the  holder  is  to  enforce  payment 
at  law.  [Signed.]  W.  W.  Beasley  &  Sons.  Payable  at  First  National 
Bank,  Helena,  Montana";  and  that  the  defendants  are  not  residents 
of  this  state ;  that  they  are  about  to  remove  their  property  from  the 
state  with  intent  to  defraud  their  creditors,  and  are  about  to  assign 
and  dispose  of  their  property  with  like  intent.  And  the  said  affiant 
doth  depose  and  say,  that  said  plaintiff  is  in  danger  of  losing  his  said 
claim  by  reason  of  the  facts  aforesaid,  unless  a  writ  of  attachment 
shall  issue,  and  prays  that  such  writ  of  attachment  may  be  allowed 
and  issued  against  the  property  of  said  defendant  therein  accord- 
ing to  the  statute  in  such  cases  provided;  and  said  affiant  says  that 
no  previous  application  has  been  made  therein  for  such  order,  and 
further  saith  not.     [Etc.] 

For  form  of  affidavit  of  attachment,  New  Mexico  procedure,  see  Laws  1907,  §  26S5*. 
eub-sec.  207,  p.  276. 

§430.     UNDERTAKINGS. 

FORM   No.  1027 — Undertaking  on  attachment. 

[Title  of  court  and  cause.] 

Whereas,  the  above-named  plaintiff  has  commenced,  or  is  about  to 
commence,  an  action  in  the  superior  court  of  the  county  of  , 

state  of  ,  against  the  above-named  defendant,  upon  a  contract 

for  the  direct  payment  of  money,  claiming  that  there  is  due  to  said 
plaintiff  from  said  defendant,  the  sum  of  $  ,  or  thereabouts, 

and  is  about  to  apply  for  an  attachment  against  the  property 

of  said  defendant,  as  security  for  the  satisfaction  of  any  judgment 
that  may  be  recovered  therein : 

Now,  therefore,  we,  the  undersigned,  residents  of  the  county  of 
,  in  consideration  of  the  premises,  and  of  the  issuing  of  said 
attachment,  do  jointly  and  severally  undertake  in  the  sum  of  $  , 

and  promise  to  the  effect  that  if  defendant  recover  judgment,  the 
plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  said  defendant, 
and  all  damages  which  he  may  sustain  by  reason  of  said  attachment,. 


Ch.  CXXIV.]  UNDERTAKINGS.— FORMS.  1693 

not  exceeding  the  sura  specified  in  this  undertaking,  of  $  ;  and 

that  if  said  attachment  should  be  discharged  on  the  ground  that  the 
plaintiff  was  not  entitled  thereto  [under  section  537  of  the  California 
Code  of  Civil  Procedure],  the  plaintiff  will  pay  all  damages  which 
the  defendant  may  have  sustained  by  reason  of  said  attachment,  not 
exceeding  the  sum  specified  in  said  undertaking,  of  $ 

Dated  at  ,  this  day  of  ,  19     . 

[Signature  of  surety.]      [Seal.] 
[Signature  of  surety.]      [Seal.] 

[Oath  of  sureties  as  in  succeeding  form.] 

[Approval  and  filing  endorsements.] 

FORM   No.  1028 — Oath  of  sureties  endorsed   upon  or  attached  to  the  fore- 
going undertaking. 
County  of  .    ) 

State  of  ,   j 

,  and  ,  whose  names  are  subscribed  as  the  sureties  to 

the  above  undertaking,  being  severally  duly  sworn,  each  for  him- 
self, says:  That  he  is  a  resident  and  freeholder  [or  householder] 
within  the  said  county  of  ;  and  that  he  is  worth  the  sum  in  the 

said  undertaking  specified  as  the  penalty  thereof,  over  and  above  all 
his  debts  and  liabilities,  exclusive  of  property  exempt  from  execution. 
[Jurat.]  [Signatures.] 

FORM   No.  1029 — Undertaking"   given   to   procure   an   order  to   discharge   am 
attachment. 
[Title  of  court  and  cause.] 

,  the  sheriff  of  the  county  of  ,  in  this  state,  having, 

under  and  by  virtue  of  a  writ  of  attachment  issued  in  this  action, 
attached  property  of  ,  defendant  in  the  action,  which  property 

is  described  as  follows,  namely:  [Here  describe  the  same]  ;  and  the 
defendant  having  applied  to  this  court,  upon  due  notice  to  the 
plaintiff,  for  an  order  to  release  said  property  from  said  attachment, 
and  the  court  having  required,  before  such  order  was  made,  an 
undertaking  on  behalf  of  defendant,  and  having  fixed  the  amount  of 
said  undertaking  at  $  : 

Now,  therefore,  in  consideration  of  the  premises,  and  for  the  pur- 
pose of  the  making  of  said  order,  we,  and  ,  residents  and 
freeholders  [or  householders]  in  the  county  of            ,  state  of 
undertake,  on  behalf  of  said  defendant,  and  are  bound  to  the  plaint- 


1694  ATTACHMENT  AND  GARNISHMENT.  [Tit.  XV. 

iff  in  the  sum  of  $  ,  and  promise  the  plaintiff  that,  in  case  the 

plaintiff  recover  judgment  in  said  action,  the  defendant  will,  on 
demand,  redeliver  the  attached  property  so  released  to  the  proper 
officer,  to  be  applied  to  the  payment  of  the  judgment ;  or,  in  default 
thereof,  that  the  defendant,  and  we,  his  sureties,  will,  on  demand, 
pay  to  the  plaintiff  the  full  value  of  the  property  released.  [If  the 
value  of  the  property  is  fixed  or  agreed  upon,  insert:    "to  wit: 

[Date.]  [Signature.] 

For  form  of  bond  under  New  Mexico  procedure,   see   Laws  1907,    §  2685,   sub-sec. 
208,  p.  276. 

§431.     WRIT,  CERTIFICATES,   RETURN,   ETC. 
FORM    No.  1030 — Writ  of  attachment. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  ,  to  the  sheriff  of  the  county 

of  ,  greeting: 

Whereas,  the  above-entitled  action  [now  pending]  was  com- 
menced in  the  court  of  the  county  of  ,  state  of  ,  by 
the  plaintiff  therein,  to  recover  from  the  defendant  therein  the  sum 
of  $  ,  besides  interest  at  the  rate  of  per  cent  per  annum 
from  the             day  of             ,  19     ,  and  costs  of  suit ;  and 

Whereas,  the  necessary  affidavit  and  undertaking  have  been  filed 
herein  as  required  by  law : 

Now,  we  do  therefore  command  you,  the  said  sheriff,  that  you 
attach  and  safely  keep  all  the  property  of  the  defendant,  within  your 
said  county,  not  exempt  from  execution,  or  so  much  thereof  as  may 
be  sufficient  to  satisfy  the  said  plaintiff's  demand  as  above  men- 
tioned, unless  the  said  defendant  give  you  security  by  the  under- 
taking of  at  least  two  sufficient  sureties,  in  an  amount  sufficient  to 
satisfy  said  demand,  with  costs,  or  in  an  amount  equal  to  the  value  of 
the  property  which  has  been  or  is  about  to  be  attached,  in  which  case 
you  will  take  such  undertaking;  and  hereof  make  due  and  legal 
service  and  return. 

Witness  the  Hon.  [S.  T.],  judge  of  the  said  court,  this 

day  of  '  19     *  S.  T.,  Judge. 

Attest  my  hand  and  the  seal  of  the  said  court,  this  day 

of  >  19     *  F.  G.,  Clerk. 

[Seal.]  By  N-  M->  Deputy  Clork. 


•Ch.  CXXIV.]  WRITS,    CERTIFICATES,    ETC.— FORMS.  1695 

FORM   No.  1031 — Return  of  sheriff  to  writ  of  attachment. 
(In  Harrison  v.  Trader,  29  Ark.  85. )x 

[Title  of  court  and  cause.] 

I  executed  the  within  writ  of  attachment  at  Phillips  County,  Ark., 
on  the  29th  day  of  March,  1867,  by  declaring  publicly,  in  the  presence 
of  Cameron  Biscoe,  a  citizen  of  my  county,  that  I  did  attach  the  fol- 
lowing-named lands  as  the  property  of  the  within-named  defendant, 
William  H.  Trader,  and  Ellen  Trader,  his  wife.  [Here  follows  a 
-description  of  the  land.]  Levied  on  by  virtue  of  the  within  writ  of 
attachment.  The  said  William  Trader  and  Ellen  Trader,  his  wife, 
are  not  found  in  my  county.  Bart  y  Turner   gheriff 

FORM   No.  1032 — Notice   of  garnishment    [or  attachment]   of   moneys    [etc.] 
owing  [or  belonging]  to  defendant. 

County   of 
Sheriff's  office. 

To  A.  B.  [naming  the  garnishee] 

Please  take  notice,  that  all  moneys,  goods,  credits,  stocks,  or  inter- 
ests or  shares  in  the  Company,  all  debts  due  and  owing  from 
you  to  the  defendant  above-named,  and  all  other  personal  property 
in  your  possession  or  under  your  control,  belonging  to  the  said 
defendant,  is  hereby  garnished  [or  attached]  by  virtue  of  a  writ  of 
which  the  annexed  is  a  true  copy;  and  you  are  hereby  notified  not 
to  pay  over  or  transfer  said  property  [debts,  etc.]  to  any  one  but 
the  undersigned  sheriff.  You  are  hereby  requested  to  make  a  state- 
ment of  said  property.  R  g    Sheriff 

[Copy  of  writ  annexed.] 

FORM   No.  1033 — Certificate  by  sheriff  of  execution  of  writ  of  attachment  in 
garnishment  proceeding. 

(In  Carter  v.  Koshland,  12  Ore.  492;  8  Pac.  556.) 

[Endorsed  upon  the  writ:] 

I  hereby  certify  that  I  received  the  within  writ  of  attachment  on 
the  14th  day  of  May,  1885,  at  Portland,  in  the  county  of  Multnomah, 

i  The  return  to  the  writ  of  attachment,  form  No.  1031,  was  held  to  be  a  good  levy 
on  lands,  and  that  the  same  created  a  lien  thereon  from  the  date  of  the  attachment, 
under  the  7th  section  of  the  act  approved  March  7,  1867:  Harrison  v.  Trader,  29 
Ark.   85. 


1696  ATTACHMENT  AND  GARNISHMENT.  [Tit.  XV.. 

in  said  state,  by  serving  a  garnishment  upon  K.  B.,  as  required  by 

law,  garnishing  all  debts,  property,  moneys,  rights,  dues,  and  credits 

of  every  nature  in  their  hands  or  under  their  control,  belonging  or 

owing  to  the  said  L.  H.  Frank,  to  which  the  said  K.  B.  made  an 

answer;  said  answer  being  hereto  attached  and  made  a  part  of  this 

return.  ir  ..    _,,      ._ 

M.  N.,  Sheriff. 

FORM   No.  1034 — Answer  of  garnishee  to  the  writ. 

(In  Carter  v.  Koshland,  12  Ore.  492;  8  Pac.  556.) 
[Attached  to  the  writ:] 

I  hereby  return  [and  answer]  that  I  have  no  property  in  my  hands 
at  this  time,  nor  have  I  any  property,  debts,  money,  dues,  or  credits, 
of  any  kind  or  nature,  belonging  to  L.  H.  Frank  [defendant]. 

[Signed]     K.  B. 

FORM   No.  1035 — Receipt   In   satisfaction   of  claim,  and   directing   release  of 
goods  attached. 

(In  Levy  v.  McDowell,  45  Tex.  220,  222.) 
[Title  of  court  and  cause.] 

Received  of  the  sum  of  $182,  in  full  satisfaction  of  claim  of 

Ralph  Levy  &  Co.  against  James  McDowell ;  and  J.  B.  Good,  sheriff 
of  Colorado  County,  will  release  the  goods  attached  in  the  suit. 

R.  V.  Cook, 
Attorney  for  Ralph  Levy  &  Co.,  plaintiff. 

§432.     MOTIONS  AND  ORDERS. 

FORM   No.  1036 — Motion  to  quash  writ  of  attachment.     (Special  appearance.) 
(In  Holzman  v.  Martinez,  2  N.  Mex.  271,  282.) 

[Title  of  court  and  cause.] 

And  now  comes  the  defendant,  and  for  the  purpose  of  this  motion, 
and  for  no  other,  moves  the  court  to  quash  the  writ  of  attach- 
ment herein,  for  the  following  reasons,  to  wit : 

1.  Said  writ  of  attachment  is  void  on  its  face. 

2.  Said  writ  of  attachment  is  returnable  to  an  impossible  day  and 
impossible  term,  if  to  any  term  at  all. 

3.  The  said  writ  bears  no  teste  of  any  court. 

4.  The  said  writ  has  no  endorsement  containing  a  brief  statement 
of  the  cause  of  action  thereon,  as  required  by  law. 


€b.  CXXIV.]  MOTIONS  AND  ORDERS.— FORMS.  1G97 

5.  Said  writ  is  otherwise  uncertain,  defective,  and  insufficient  in 
many  other  respects,  as  appears  from  the  face  thereof. 

Said  motion  will  be  based  upon  the  papers,  records,  etc.,  in  said 
case. 

C.  D.,  Attorney  for  defendant  for  said  purpose. 

FORM   No.  1037— Order  releasing  attachment. 

[Title  of  court  and  cause.] 

,  the  defendant  in  this  action,  having  applied  for  the 
release  of  property  attached  therein,  and  an  undertaking  having 
been  given  in  behalf  of  ,  defendant  in  this  action,  as  required 

by  the  court,  to  obtain  an  order  for  the  release  from  attachment  of 
the  property  of  said  defendant,  ,  attached  under  a  writ  of 

attachment  issued  in  this  action,  and  the  sureties  to  such  undertaking 
having  justified  [or  no  exception  to  the  sufficiency  of  said  sureties 
having  been  made]  : 

It  is  therefore  ordered,  that  the  following-described  property  of 
the  defendant,  ,  namely:    [Here  describe  the  same],  which  has 

been  attached  under  writ  of  attachment  issued  herein,  be  and  the 
same  is  hereby  released  from  said  attachment. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1038 — Order    discharging    an    attachment    improperly    or    irregu- 
larly issued. 

[Title  of  court  and  cause.] 

It  appearing  to  the  court  that  the  writ  of  attachment  in  this 
action  was  improperly  [or  irregularly]  issued  [or  both  improperly 
and  irregularly  issued],  for  the  following  reasons:  [Here  state  the 
same  briefly :] 

It  is  therefore  ordered,  that  said  writ  of  attachment  be  and  the 
same  is  hereby  discharged. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1039 — Order  for  the  sale  of  attached  property. 

[Title  of  court  and  cause.] 

It  appearing  to  the  satisfaction  of  the  court  from  the  stipulation 
of  the  attorneys  of  the  parties  to  the  action  [or  from  affidavits  or 
from  evidence,  as  the  case  may  be],  that  the  property  under  attach- 


1698  ATTACHMENT  AND  GARNISHMENT.  [Tit.  XV. 

ment  herein  is  of  a  perishable  character  [or  that  the  same  is  likely 
to  materially  depreciate  in  value],  and  it  appearing  that  it  will  be 
for  the  interest  and  advantage  of  the  parties  to  the  action  if  said 
property  be  sold  forthwith : 

It  is  therefore  ordered,  that  said  property  so  attached  be  sold  by 
the  sheriff  in  whose  care  said  property  is  now  held,  and  that  sale 
thereof  be  made  in  the  manner  provided  by  law  [or,  if  the  statute 
make  no  provision  as  to  manner  of  sale,  specify  the  manner,  if 
desired]  ;  and  it  is  further  ordered,  that  the  proceeds  of  said  sale  be 
deposited  in  court  to  abide  the  judgment  in  this  action. 

[Date.]  S.  T.,  Judge. 

FORM   No.   1040 — Order  reviving  proceedings  against  non-resident  defendant, 
and  continuing  attachment  proceeding. 

[Title  of  court  and  cause.] 

[After  introductory  part,  briefly  setting  forth  filing  of  motion  and 
hearing  thereon :] 

It  is  ordered,  that  plaintiff  have,  and  he  is  hereby  granted,  leave 
to  proceed  against  ,  the  executor    [or  administrator]    of  the 

estate  of  said  ,  deceased,  by  the  service  of  summons  and  the 

complaint  upon  him  as  the  defendant  herein;  and  that  the  proceed- 
ings by  attachment  stand  revived  and  continued  in  the  name  of  said 
executor  as  defendant. 

[Date.]  S.  T.,  Judge. 

Form  of  petition  in  an  action  for  abuse  of  legal  process  in  a  civil  suit,  the  defend- 
ant having  directed  the  sheriff  to  serve  the  execution  by  a  garnishment  of  a  com- 
pany for  a  debt  due  for  personal  earnings  exempt  from  execution:  Nix  v.  GoodhiJl. 
95  Iowa  282,  63  N.  W.  701,  58  Am.  St.  Rep.  434. 

§433.     ANNOTATIONS.— Attachment  and  garnishment. 

1.  Limitation  upon  right  to  attachment. 
2,  3.  Property  subject  to  attachment. — Corporation  stock. 

4.  Attachment  of  crops  under  mortgage. 

5.  Money  lost  in  gambling. 

6.  Effect  of  assignment. 

7.  Liability  upon  undertaking. 

8.  Payee  not  designated  in  bond. — Effect  of. 

9.  Liability  of  sheriff. 

10,  11.  Security  for  indebtedness. — Omission  of  statement. 

12.  Interest  not  required  to  be  stated. 

13.  Defense  of  estoppel  in  relation  to  attachment  proceedings. 
14-16.  Intervention. 

17.  Junior  attaching  creditor  may  intervene. 

18.  Texas  practice  as  to  intervention. 

19.  Interplea  in  attachment. 

20,  21.  Judgment  against  garnishee. 


Ch.  CXXIV.] 


ANNOTATIONS. 


1699 


1.  Limitation  upon  right  to  attach- 
ment.— Where  a  statute  provides  that 
the  plaintiff  may  have  the  property  of 
the  defendant  attached  "in  an  action 
arising  on  contract  for  the  recovery  of 
money  only,  or  in  an  action  for  the 
wrongful  conversion  of  personal  prop- 
erty," and  further  provides  that  "the 
warrant  may  issue  upon  affidavit  stat- 
ing that  a  cause  of  action  exists  against 
such  defendant,  specifying  the  amount 
of  the  claim  and  the  grounds  thereof," 
etc.,  it  has  been  held  that  the  claim 
must  be  for  some  definite,  ascertained 
amount,  or  an  amount  capable  of  being 
definitely  ascertained  and  made  certain 
by  the  contract  and  the  statement  in 
the  affidavit;  and  further,  that  the  lan- 
guage of  such  statute  is  broad  and 
comprehensive  enough  to  include  all  ac- 
tions on  contract  for  the  recovery  of 
money  only,  whether  the  damages  are 
liquidated   or   unliquidated. 

There  would  be  included  under  this 
rule  all  claims  for  damages  in  which, 
from  the  contract  and  facts  stated  in 
the  affidavit,  the  court  in  applying  the 
law  can  definitely  determine  the  amount 
which  plaintiff  is  entitled  to  recover; 
and  it  would  exclude  all  cases  where  the 
amount  of  the  claim  can  be  determined 
by  no  fixed  rule  of  law,  but  is  to  be  de- 
termined entirely  by  the  opinion  of  a 
court  or  jury:  Coats  v.  Arthur,  5  S. 
Dak.  274,  58  N.  W.  675,  (Fuller,  J.,  dis- 
senting, and  in  his  opinion  stating  that 
he  did  not  consider  the  statute  broad 
enough  in  its  terms  to  include  cases  at 
which  the  facts  are  as  stated  in  the  af- 
fidavit). 

2.  Property  subject  to  attachment. — 
Corporation  stock. — An  attachment  may 
be  levied  upon  transferred  shares  of 
stock  as  the  property  of  the  trans- 
ferrer, unless  such  transfer  is  completed 
by  entry  on  the  books  of  the  corpora- 
tion: Weston  v.  Bear  River  etc.  Co.,  5 
Cal.  186,  187-189,  63  Am.  Dec.  117;  Nag- 
lee  v.  Pacific  Wharf  Co.,  20  Cal.  529, 
533;  Farmers'  Nat.  Gold  Bank  v.  Wilson. 
58  Cal.  600,  604;  McFall  v.  Buckeye 
Grangers'  Warehouse  Assn.,  122  Cal. 
468,  471,  55  Pac.  253,  68  Am.  St.  Rep.  47; 
First  Nat.  Bank  v.  Hastings,  7  Colo. 
App.  129,  42  Pac.  691;  Conway  v.  John, 
14  Colo.  30,  33,  23  Pac.  170;  Ft.  Madi- 
son Lumber  Co.  v.  Batavian  Bank,  71 
Iowa  270,  32  N.  W.  336,  60  Am.  Rep. 
789;  Lyndonville  Nat.  Bank  v.  Folsom, 
7  N.  Mex.  611,  38  Pac.  253;  In  re  Argus 


Print  Co.,  1  N.  Dak.  434,  48  NT.  W.  347, 
26  Am.  St.  Rep.  639,  12  L.  R.  A.  781; 
Union  Bank  v.  Laird,  15  U.  S.  (2  Wheat.) 
390,  4  L.  ed.   269. 

3.  Equity  will  not  permit  the  stock 
to  be  attached  as  belonging  to  the  trans- 
ferrer where  the  transferee  has  been 
diligent  in  his  efforts  to  comply  with 
the  statute,  and  the  failure  to  have  the 
entry  made  is  due  to  no  fault  of  his: 
Weber  v.  Bullock,  19  Colo.  214,  35  Pac. 
183;  Hastings  v.  First  Nat.  Bank,  4 
Colo.  App.  419,  36  Pac.  618;  Colt  v.  Ives, 
31  Conn.  25,  81  Am.  Dec.  161. 

4.  Attachment  of  crops  under  mort- 
gage.— Attachment  can  not  issue  upon 
growing  crops  included  in  a  chattel 
mortgage  until  payment  of  mortgage 
debt  or  tender  thereof  has  been  made: 
Wood  v.  Franks,  56  Cal.  217;  Chittenden 
v.  Pratt,  89  Cal.  178,  183,  26  Pac.  626. 
See  Rudolph  v.  Saunders,  111  Cal.  233, 
234,  43  Pac.  619. 

5.  Money  lost  in  gambling,  where  in- 
trusted to  a  clerk,  can  not  be  recovered 
by  his  principal  in  attachment  proceed- 
ings: Babcock  v.  Briggs,  52  Cal.  502, 
503. 

6.  Effect  of  assignment. — All  that  can 
be  reached  under  execution  or  by  gar- 
nishment is  the  right  which  remains  in 
the  assignor,  where  the  assignment  is 
made  bona  fide.  This  interest  is  the 
legal  title,  subject  to  the  equitable  in- 
terests of  the  assignee:  Wheless  v. 
Meyer  etc.  Co.,  140  Mo.  App.  572,  120 
S.  W.  708,  714. 

7.  Liability  upon  undertaking. — An 
undertaking  in  attachment  does  not  ren- 
der the  obligors  liable  for  remote  and 
possible  consequences,  but  only  for  the 
proximate  consequences  naturally  and 
ordinarily  resulting  from  effect  of  writs: 
Elder  v.  Kutner,  97  Cal.  490,  493,  32  Pac. 
563. 

8.  Payee  not  designated  in  bond. — Ef- 
fect of. — A  bond  given  by  interveners 
upon  an  order  of  sale  enforcing  an  at- 
tachment lien,  which  order  of  sale  and 
bond  were  directed  to  the  sheriff,  the 
bond  designating  no  payee,  but  naming 
the  party  for  whose  security  the  obliga- 
tion was  to  be  executed,  has  been  up- 
held as  a  good  common-law  bond: 
Eichoff  v.  Tidball,  61  Tex.  421,  423, 
(form  of  the  bond  set  out  in  the  report 
of  the  case). 

9.  Liability  of  sheriff. — It  is  the  duty 
of  the  sheriff,  when  he  receives  instruc- 
tions,  to   release  the  levy  and  to  return 


1700 


ATTACHMENT  AND  GARNISHMENT. 


[Tit.  XV. 


the  goods  to  the  defendant  or  to  his 
agent;  and  the  sheriff  and  his  sureties 
are  responsible  to  the  owner  of  the 
goods  for  their  value  in  case  he  fails  to 
do  so,  or  in  case  he  turns  them  over  to 
some  person  not  authorized  to  receive 
the  same,  although,  by  misapprehension, 
he,  the  sheriff,  believed  that  such  per- 
son was  the  agent  of  the  defendant: 
Levy  v.  McDowell,  45  Texas  220,  226. 

10.  Security  for  indebtedness. — Omis- 
sion of  statement. — An  affidavit  for  at- 
tachment is  insufficient  where  it  pro- 
ceeds to  follow  the  language  of  the 
statute  and  omits  one  of  the  important 
elements  which  the  statute  provides  that 
it  must  contain.  Under  this  rule,  it 
has  been  held  that  where  the  statute 
provides  that  the  affidavit  shall  state, 
among  other  things,  that  the  indebted- 
ness or  demand  "has  not  been  secured 
by  •  •  *  any  mortgage  or  lien  upon 
real  or  personal  property,  or  any  pledge 
of  personal  property,"  an  omission  of 
the  provision  that  the  debt  was  not  se- 
cured by  "any  pledge  of  personal  prop- 
erty," or  any  substantially  equivalent 
expression,  is  fatal  to  the  affidavit: 
Knutsen  v.  Phillips,  16  Idaho  267,  101 
Pac.   596,   598. 

11.  A  contrary,  and  perhaps  a  better, 
doctrine  than  that  declared  upon  in 
Knutsen  v.  Phillips,  16  Idaho  267,  101 
Pac.  596,  is  that  a  declaration  that  the 
affiant  has  no  lien  upon  personal  prop- 
erty is  sufficient  to  negative  all  possi- 
bility of  his  having  a  pledge;  for  if  he 
had  any  pledge  of  personal  property,  he 
must  have  had  a  lien  upon  it:  Glidden 
v.  Whittier,  46  Fed.  (C.  C.)  437;  O'Con- 
nor v.  Witherby,  112  Cal.  38,  44  Pac.  340. 

12.  Interest  not  required  to  be  stated. 
— It  is  not  a  material  objection  to  an  af- 
fidavit for  attachment  that  it  does  not 
state  the  amount  of  interest  due  upon 
plaintiff's  demand,  where  the  principal 
sum  is  stated:  Wright  v.  Ragland,  18 
Tex.   289,   292. 

13.  Defense  of  estoppel  In  relation  to 
attachment  proceedings. 

[Title  of  court  and  cause.] 

[It  has  been  held  that  the  following 
paragraphs  in  an  answer  set  forth  facts 
by  averment  sufficient  to  constitute  an 
estoppel  if  established  on  the  trial,  and 
that  therefore  it  was  error  to  sustain  a 
demurrer  thereto:  Ashley  v.  Pick,  53 
Ore.  410,  100  Pac.  1103.] 

[After  introductory  averments  the  an- 
swer proceeds:] 


(5)  That  afterwards,  to  wit,  on  the  1st 
day  of  May,  1907,  in  a  civil  action  for 
recovery  of  money  then  pending  in  the 
justice  court,  Portland  District,  Mult- 
nomah County,  state  of  Oregon,  wherein 
D.  H.  Smith  was  plaintiff  and  said  A.  J. 
Parrington  and  Olive  Parrington,  his 
wife,  were  defendants,  a  writ  of  attach- 
ment was  duly  issued,  commanding  the 
constable  of  said  district,  of  the  personal 
property  of  said  defendant  to  attach  and 
safely  keep  to  satisfy  the  demands  of 
plaintiff  in  said  action,  together  with  the 
costs  and  expenses  thereof.  That  under 
and  pursuant  to  said  writ  all  the  prop- 
erty described  in  said  complaint,  and  so 
received  by  this  defendant,  was  duly  at- 
tached and  levied  upon  as  the  property 
of  said  defendants  in  said  action.  That 
afterwards,  and  on  the  6th  day  of  June, 
1907,  said  court  having  jurisdiction  over 
said  defendant  and  the  subject-matter 
of  said  action,  rendered  a  judgment 
therein  in  favor  of  plaintiff,  and  against 
said  defendant,  and  all  of  said  attached 
property  was  by  the  order  of  said  court 
directed  to  be  sold  to  satisfy  said  judg- 
ment. That,  pursuant  to  such  order  and 
judgment  of  said  court,  the  constable  of 
said  district  did  on  or  about  the  22d 
day  of  June,  1907,  take  from  the  posses- 
sion of  this  defendant  all  of  said  per- 
sonal property,  and  pursuant  to  said 
judgment  and  order  of  sale,  after  having 
duly  advertised  the  same,  sold  all  said 
personal  property  to  satisfy  the  judg- 
ment so  rendered  by  said  court  in  such 
action  against  said  defendants,  A.  J. 
Parrington  and  wife. 

(6)  Further  answering,  defendant  avers 
that  he  had  no  knowledge  or  any  infor- 
mation of  any  sale,  assignment,  or 
transfer  of  the  receipt  so  issued  by  him 
for  the  personal  property  so  received 
from  said  A.  J.  Parrington  and  wife, 
prior  to  the  said  27th  day  of  July,  1907, 
and  long  after  the  attachment  levy  upon 
and  sale  of  said  personal  property;  that 
said  plaintiffs  knew  and  were  well 
aware  that  all  of  said  personal  property 
was  so  attached  and  levied  upon  as  the 
property  of  said  A.  J.  Parrington  and 
wife,  and  was  being  advertised  and  sold 
as  such;  that  the  place  of  business  of 
plaintiffs  is  in  the  same  vicinity  as  that 
of  defendant,  and,  during  all  the  while 
said  property  so  sold  under  attachment 
was  being  advertised  and  sold  to  sat- 
isfy the  judgment  against  said  Parring- 
ton and   wife,   the  said  plaintiffs,    being 


Ch.  CXXIV.] 


ANNOTATIONS. 


noi 


fully  advised  thereof,  acquiesced  there- 
in, and  did  not  then  or  ever  prior  to 
such  sale  make  any  claim  of  ownership 
or  of  any  Interest  in  said  personal  prop- 
erty, or  cause  any  information  to  be 
given  to  this  defendant  that  they  had  or 
claimed  the  same,  or  any  interest  there- 
in; that  solely  by  reason  of  such 
acquiescence  of  plaintiffs  in  the  pro- 
ceedings then  being  had  to  subject  said 
property  to  the  payment  of  said  judg- 
ment, and  the  lack  of  any  knowledge  or 
information  that  plaintiffs  claimed  said 
property  or  any  interest  therein,  this 
defendant  took  no  appeal  from  the  order 
and  judgment  of  said  court  directing 
the  sale  of  said  property,  or  any  steps 
to  enjoin  the  constable  of  said  district 
from  taking  possession  of  said  property 
under  said  writ,  and  this  defendant  al- 
leges that,  by  reason  of  the  acquiescence 
of  plaintiffs  on  such  levy  and  sale  of 
said  property,  the  plaintiffs  are  now 
estopped  from  making  claim  thereto. 

[Prayer.]  John  M.  Gearin, 

Attorney   for   defendant. 

[Verification.] 

14.  Intervention  is  uniformly  allowed 
In  favor  of  the  owner  of  attached  goods 
Letchford  v.  Jacobs,  17  La.  Ann.  79 
Dennis  v.  Kolm,  131  Cal.  91,  63  Pac.  141 
Potlatch  L.  Co.  v.  Runkel,  16  Idaho  192, 
101  Pac.  396,  398,  23  L.  R.  A.  (N.  S.) 
536;  Taylor  v.  Adair,  22  Iowa  279. 

15.  One  who  claims  to  be  the  owner 
of  attached  property,  or  to  have  a  lien 
on  it  by  mortgage,  attachment,  or  other- 
wise, is  entitled  to  intervene  in  an  ac- 
tion where  the  property  has  been  at- 
tached as  being  the  property  of  another 
party:  Potlatch  L.  Co.  v.  Runkel,  16 
Idaho  192,  101  Pac.  396,  398,  23  L.  R.  A. 
(N.  S.)  536. 

16.  If  intervention  were  not  allowed  in 
favor  of  the  owner  of  attached  property, 
it  would  seem  that  it  would  be  neces- 
sary for  the  owner  to  prosecute  his  ac- 
tion to  remove  the  cloud  of  the  attach- 
ment, unless  the  plaintiff  in  the  action 
should  voluntarily  relinquish  his  claim. 
It  is  for  just  such  a  case,  and  for  the 
purpose  of  preventing  circuity  and  mul- 
tiplicity of  actions,  that  the  statute 
authorizing  intervention  by  strangers 
was  enacted:  Potlatch  L.  Co.  v.  Runkel, 
16  Idaho  192,  101  Pac.  396,  398,  23  L.  R. 
A.  (N.  S.)  536;  Pittock  v.  Buck,  15 
Idaho      47,      96      Pac.      212;      Pence      v. 

Jury's  PI.— 108. 


Sweeney,  3  Idaho  (Hasb.)  181,  28  Pac. 
413;  Gold  Hunter  M.  &  S.  Co.  v.  Holle- 
man,  3  Idaho  (Hasb.)  99,  27  Pac.  413. 

17.  A  Junior  attaching  creditor  may 
Intervene  in  the  action  of  a  senior  at- 
taching creditor  for  the  purpose  of  test- 
ing the  validity  of  the  first  attachment: 
McComb  v.  Reed,  28  Cal.  281,  87  Am. 
Dec.  115;  Coghill  v.  Marks,  29  Cal.  673; 
Stich  v.  Dickenson,  38  Cal.  608;  Kimball 
v.  Richardson-Kimball  Co.,  Ill  Cal.  386, 
43  Pac.  1111;  McEldowney  v.  Madden, 
124  Cal.  108,  56  Pac.  783. 

18.  Texas  practice  as  to  intervention. 
— Under  the  Texas  practice,  a  third 
party,  as  owner  or  claimant  of  the  prop- 
erty attached,  may  not  intervene  in  the 
same  case  for  the  purpose  of  asserting 
his  right,  for  the  reason  that,  in  such 
cases,  the  subject-matter  of  the  suit  is 
the  debt  to  be  collected,  and  the  owner- 
ship of  the  property  is  in  no  way  put 
in  issue  by  the  pleadings  in  the  case, 
and  therefore  forms  no  part  of  the  sub- 
ject-matter of  the  action:  Williams  v. 
Bailey  (Tex.  Civ.  App.),  29  S.  W. 
834;  Rodigues  v.  Trevino,  54  Tex.  198; 
Meyer  v.  Sligh,  81  Tex.  336,  16  S.  W. 
1022. 

19.  Interplea  in  attachment. — An  in- 
terplea  under  the  statute  requiring  that 
any  person  before  the  sale  of  attached 
property,  or  before  the  payment  of  the 
proceeds  thereof  to  the  plaintiff,  may 
present  his  verified  complaint  to  the 
court  disputing  the  validity  of  the  at- 
tachment or  stating  his  claim  to  the 
property  or  an  interest  therein,  must  be 
read  in  connection  with  the  code  sec- 
tions which  say  "no  objection  shall  be 
taken  after  judgment  to  any  pleading 
for  want  of,  or  defect  in,  the  verifica- 
tion": Burke  v.  Sharp,  88  Ark.  433,  115 
S.  W.  145,  148,  citing  Ark.  Civ.  Code, 
§§  159,  257,  and  Kirby's  Digest,  §§  391, 
6152,  6182. 

20.  Judgment  against  a  garnishee  can 
not  lawfully  be  rendered  until  judgment 
has  been  rendered  against  the  defend- 
ant in  the  main  action:  Norman  v. 
Poole,  70  Ark.  127,  66  S.  W.  433. 

21.  But  where  that  judgment  has  been 
rendered,  and  can  not  be  enforced  on 
account  of  failure  to  comply  with  the 
statutes,  such  failure  should  be  set  up 
by  the  garnishee  as  a  defense:  St.  Louis 
etc.  R.  Co.  v.  McDermitt,  91  Ark.  112, 
120  S.  W.  831,  833. 


1702  RECEIVERS.  [Tit.  XV. 


CHAPTER    CXXV. 

Receivers. 

Page 

§  434.  Code  provisions 1702 

§  435.  Petitions  and  orders  for  leave  to  sue 1706 

Form  No.  1041.  Petition  for  leave  to  sue  a  receiver 170& 

Form  No.  1042.  Certificate  of  attorney  as  to  merits 1707 

Form  No.  1043.  Order  granting  leave  to  sue  a  receiver 1707 

Form  No.  1044.  Petition  of  receiver  for  leave  to  sue 1707 

Form  No.  1045.  Order  authorizing  receiver  to  sue 1708 

§  436.  Complaints   [or  petitions]    1709 

Form  No.  1046.  By  a  receiver  appointed  by  a  court  in  an  action  1709 
Form  No.  1047.  By  receiver  of  a  mining  corporation,  to  recover 

assets  belonging  thereto 1710 

Form  No.  1048.  Action  against  a  receiver 1712 

§  437.  Annotations 1712 


§434.     CODE  PROVISIONS. 

Receiver — When  and  in  what  cases  appointed. 

California,  §  564.  A  receiver  may  be  appointed  by  the  court  in 
which  an  action  is  pending,  or  by  the  judge  thereof : 

1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase  of 
property,  or  by  a  creditor  to  subject  any  property  or  fund  to  his 
claim,  or  between  partners  or  others  jointly  owning  or  interested  in 
any  property  or  fund,  on  the  application  of  the  plaintiff,  or  of  any 
party  whose  right  to  or  interest  in  the  property  or  fund,  or  the  pro- 
ceeds thereof,  is  probable,  and  where  it  is  shown  that  the  property 
or  fund  is  in  danger  of  being  lost,  removed,  or  materially  injured; 

2.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  his  mortgage 
and  sale  of  the  mortgaged  property,  where  it  appears  that  the  mort- 
gaged property  is  in  danger  of  being  lost,  removed,  or  materially 
injured,  or  that  the  condition  of  the  mortgage  has  not  been  per- 
formed, and  that  the  property  is  probably  insufficient  to  discharge 
the  mortgage  debt ; 

3.  After  judgment,  to  carry  the  judgment  into  effect; 

4.  After  judgment,  to  dispose  of  the  property  according  to  the 
judgment,  or  to  preserve  it  during  the  pendency  of  an  appeal,  or  in 
proceedings  in  aid  of  execution,  when  an  execution  has  been  returned 


Ch.  CXXV.]  CODE  PROVISIONS.  1703 

unsatisfied,  or  when  the  judgment  debtor  refuses  to  apply  his  prop- 
erty in  satisfaction  of  the  judgment; 

5.  In  the  cases  when  a  corporation  has  been  dissolved,  or  is  insolv- 
ent, or  in  imminent  danger  of  insolvency,  or  has  forfeited  its  corpo- 
rate rights; 

6.  In  all  other  cases  where  receivers  have  heretofore  been 
appointed  by  the  usages  of  courts  of  equity.  (Kerr's  Cyc.  Code  Civ. 
Proc.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Alaska,  Ann.  Codes  1907,  C.  C.  P.  (Carter),  §753.  b  Arizona,  Rev.  Stats 
1901,  U  1532.  c  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §§6342,  6353,  6354 
d  Colorado,  Rev.  Stats.  1908,  C.  C.  P.  §179.  e  Idaho,  Rev.  Codes  1909,  §4329 
tlowa,  Ann.  Code  1897,  §3822.  g  Kansas,  Gen.  Stats.  1905  (Dassler),  §5149 
h  Minnesota,  Rev.  Laws  1905,  §  4262.  i  Missouri,  Ann.  Stats.  1906,  §  753.  Mon 
tana,  Rev.  Codes  1907,  §  6698.  J  Nebraska,  Comp.  Stats.  Ann.  1909,  §  6816 
Ann.  Stats.  1909  (Cobbey),  §1248.  k  Nevada,  Comp.  Laws  Ann.  1900  (Cut 
ting),  §  3241.  i  North  Dakota,  Rev.  Codes  1905,  §  6989.  m  Oklahoma,  Rev.  and 
Ann.  Stats.  1903  (Wilson),  §4441;  Comp.  Laws  1909  (Snyder),  §5772. 
"Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot),  §1081.  South  Dakota, 
Rev.  Codes  1903,  C.  C.  P.  §  227.  "Texas,  Civ.  Stats.  1897  (Sayles),  Art.  1465. 
Utah,  Comp.  Laws  1907,  §3114.  p  Washington,  Code  1910  (Rem.  &  Bal.), 
§741.  q  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §2787.  r  Wyoming,  Rev. 
Stats.  1899,  §  4054. 

a  Alaska,  §  753.    A  receiver  may  be  ap-  solvency,    or   has    forfeited   its   corporate 

pointed  in  any  civil  action,   or  proceed-  rights; 

ing,  other  than  an  action  for  the  recov-  Fifth      In  the  cases  when  a  deMor  has 

ery  of   specific   personal   property—  been  declared  insolvent. 

First.  Provisionally,  before  judgment,  t  .  .  „«„« 
on  the  application  of  either  party,  when  4  b  Arlz°™>  H  1532.  Judges  of  the  dis- 
his  right  to  the  property  which  is  the  trlct  courts'  ln  term  time  or  in  vacation, 
subject  of  the  action,  or  proceeding,  and  may  appoint  a  receiver  in  suits,  pending 
which  is  in  the  possession  of  an  adverse  in  sald  courts-  when  no  other  adequate 
party,  is  probable,  and  the  property  or  [emedy's  ^iven  by  law  for  the  protec- 
ts rents  or  profits  are  in  danger  of  being  tion  and  preservation  of  property,  or  the 
lost  or  materially  injured  or  impaired;  "ghts  of  Parties  therein  pending  litiga- 
. ,.       ,    ,                 .                  . .  tion  in  respect  thereto. 

Second.     After  judgment,   to  carry  the 

same  into  effect;  cl  Arkansas,  §  6342.  Whenever  it  shali 
Third.  To  dispose  of  the  property  ac-  not  be  forbidden  by  law,  and  shall  be 
cording  to  the  judgment,  or  to  preserve  deemed  fair  and  proper  in  any  case  in 
it  during  the  pendency  of  an  appeal,  or  equity,  the  court,  judge  or  chancellor 
when  an  execution  has  been  returned  sha11  appoint  some  prudent  and  discreet 
unsatisfied,  and  the  debtor  refuses  to  Person  as  receiver.  *  *  * 
apply  his  property  in  satisfaction  of  the  c2  Arkansas,  §  6353,  substantially  same 
judgment  or  decree;  as  sub.  1,  Cal.  C.  C.  P.  §  564,  except  add 
Fourth.  In  cases  provided  in  this  at  the  end,  "the  court  may  appoint  a  re- 
code,  or  by  other  statutes,  when  a  cor-  ceiver  to  take  charge  thereof  during  the 
poration  has  been  dissolved  or  is  in-  pendency  of  the  action,  and  may  order 
bclve.it,    or   in    imminent   danger   of   ln-  and  coerce  the  delivery  of  it  to  him." 


1704 


RECEIVERS. 


[Tit.  XV. 


c3  Arkansas,  §  6354,  substantially  same 
as  sub.  2,  Cal.  C.  C.  P.  §  564. 

d  Colorado,  C.  C.  P.  §  179.  A  receiver 
may  be  appointed  by  the  court  in  which 
the  action  is  pending,  or  by  a  judge 
thereof,  or,  pending  proceedings  in  the 
supreme  court  upon  appeal  or  writ  of 
error,  by  the  court  from  whose  final 
judgment  such  appellant  proceedings  are 
prosecuted,  or  by  the  judge  of  such 
court:  First,  before  judgment,  provision- 
ally, on  application  of  either  party,  when 
he  establishes  a  prima  facie  right  to  the 
property,  or  to  an  interest  in  the  prop- 
erty, which  is  the  subject  of  the  action, 
and  which  is  in  possession  of  an  adverse 
party,  and  the  property,  or  its  rents  and 
profits,  are  in  danger  of  being  lost,  or 
materially  injured  or  impaired.  Second, 
after  judgment  to  dispose  of  the  prop- 
erty according  to  the  judgment,  or  to 
preserve  it  during  the  pending  of  an  ap- 
peal; and  third,  in  such  other  cases  as 
are  in  accordance  with  the  practice  of 
courts  of  equity  jurisdiction. 

e  Idaho,  §  4329,  substantially  same  as 
Cal.  C.  C.  P.  §  564,  except  in  the  opening 
passage  in  line  two  after  "pending"  in- 
sert "or  has  passed  to  judgment." 
(Amended  Mch.  5,  1909,  Session  Laws 
1909,  p.  26.) 

f  Iowa,  §  3822.  On  the  petition  of 
either  party  to  a  civil  action  or  proceed- 
ing, wherein  he  shows  that  he  has  a 
probable  right  to,  or  interest  in,  any 
property  which  is  the  subject  of  the  con- 
troversy, and  that  such  property,  or  its 
rents  or  profits,  are  in  danger  of  being 
lost  or  materially  injured  or  impaired, 
and  on  such  notice  to  the  adverse  party 
as  the  court  or  judge  shall  prescribe,  the 
court,  or,  in  vacation,  the  judge  thereof, 
if  satisfied  that  the  interests  of  one  or 
both  parties  will  be  thereby  promoted, 
and  the  substantial  rights  of  neither  un- 
duly infringed,  may  appoint  a  receiver 
to  take  charge  of  and  control  such  prop- 
erty under  its  direction  during  the  pend- 
ency of  the  action,  and  may  order  and 
coerce  the  delivery  of  it  to  him.  Upon 
the  hearing  of  the  application,  affidavits, 
and  such  other  proof  as  the  court  or 
Judge  permits,  may  be  introduced,  and 
upon  the  whole  case  such  order  made  as 
will  be  for  the  best  interest  of  all  par- 
ties  concerned. 

e  Kansas,  §  5149.  A  receiver  may  be 
appointed  by  the  supreme  court,  the  dis- 
trict court,  or  any  Judge  of  either,  or  in 


the  absence  of  said  Judges  from  the 
county,  by  the  probate  judge: 

[Subs.  1  to  6,  inclusive,  substantially 
same  as  Cal.  C.  C.  P.  §  564.]  (Amended 
Mch.  12,  1909,  Laws  1909,  p.  329,  C.  C.  P. 
§  266.) 

h  Minnesota,  §  4262.  A  receiver  may  be 
appointed  in  the  following  cases: 

1.  Before  judgment,  on  the  application 
of  any  party  to  the  action  who  shall  show 
an  apparent  right  to  property  which  is 
the  subject  of  such  action  and  is  in  the 
possession  of  an  adverse  party,  and  the 
property,  or  its  rents  and  profits,  are  in 
danger  of  loss  or  material  impairment, 
except  in  cases  wherein  judgment  upon 
failure  to  answer  may  be  had  without 
application  to  the  court. 

2.  By  the  judgment,  or  after  judgment, 
to  carry  the  same  into  effect,  or  to  pre- 
serve the  property  pending  an  appeal,  or 
when  an  execution  has  been  returned  un- 
satisfied and  the  judgment  debtor  refuses 
to  apply  his  property  in  satisfaction  of 
the    judgment. 

3.  In  the  cases  provided  by  law,  when 
a  corporation  is  dissolved,  or  is  insolvent 
or  in  imminent  danger  of  insolvency,  or 
has  forfeited  its  corporate  rights;  and,  in 
like  cases,  of  the  property  within  this 
state  of  foreign  corporations. 

4.  In  such  other  cases  as  are  now  pro- 
vided by  law,  or  are  in  accordance  with 
the  existing  practice,  except  as  otherwise 
prescribed  in  this  section. 

i  Missouri,  §753.  The  court,  or  any 
judge  thereof  in  vacation,  shall  have 
power  to  appoint  a  receiver,  whenever 
such  appointment  shall  be  deemed  neces- 
sary, whose  duty  it  shall  be  to  keep  and 
preserve  any  money  or  other  thing  de- 
posited in  court,  or  that  may  be  the 
subject  of  a  tender,  and  to  keep  and 
preserve  all  property  and  protect  any 
business  or  business  interest  intrusted  to 
him  pending  any  legal  or  equitable  pro- 
ceeding concerning  the  same,  subject  to 
the  order  of  court. 

i  Nebraska,  §  6816.  A  receiver  may  be 
appointed  by  the  supreme  court,  or  the 
district  court,  or  by  the  judge  of  either, 
in  the  following  cases:  First,  in  an  action 
by  a  vendor  to  vacate  a  fraudulent  pur- 
chase of  property,  or  by  a  creditor  to 
subject  any  property  or  fund  to  his 
claim,  or  between  partners  or  others 
jointly  owning  or  interested  in  any  prop- 
erty or  fund,  on  the  application  of  any 
party  to  suit,  when  the  property  or  fund 
ia  in  danger  of  being  lost,   removed,   or 


Ch.  CXXV.] 


CODE  PROVISIONS. 


170.") 


materially  Injured;  second,  in  an  action 
for  the  foreclosure  of  a  mortgage,  when 
the  mortgaged  property  is  in  danger  of 
oeing  lost,  removed,  or  materially  in- 
jured, or  is  probably  insufficient  to  dis- 
charge the  mortgage  debt;  third,  after 
judgment,  or  decree  to  carry  the  same 
into  execution,  or  to  dispose  of  the  prop- 
erty according  to  the  decree  or  judg- 
ment, or  to  preserve  it  during  the  pend- 
ency of  an  appeal;  fourth,  in  all  cases 
provided  for  by  special  statutes;  fifth,  in 
all  other  cases  where  receivers  have 
heretofore  been  appointed  by  the  usages 
of  courts  of  equity. 

k  Nevada,  §  3241.  A  receiver  may  be 
appointed  by  the  court  in  which  the  ac- 
tion is  pending,  or  by  a  judge  thereof: 
First,  before  judgment,  provisionally,  on 
the  application  of  either  party,  when  he 
establishes  a  prima  facie  right  to  the 
property,  or  an  interest  in  the  property 
which  is  the  subject  of  the  action,  and 
which  is  in  the  possession  of  an  adverse 
party,  and  the  property  or  its  rents  and 
profits  are  in  danger  of  being  lost  or  ma- 
terially injured  or  impaired;  second, 
after  judgment  to  dispose  of  the  prop- 
erty according  to  the  judgment,  or  to 
preserve  it  during  the  pendency  of  an 
appeal;  and,  third,  in  such  other  cases 
as  are  in  accordance  with  the  practice 
of  courts  of  equity  jurisdiction. 

'l  North  Dakota,  §  6989,  substantially 
same  as  Cal.  C.  C.  P.  §  564,  except  in 
sub.  5,  line  one  after  "cases"  insert 
"provided  in  this  code";  and  also  at  the 
end  of  sub.  5,  add  "and  in  like  cases 
within  this  state,  of  foreign  corpora- 
tions." 

m  Oklahoma,  §  4441,  opening  passage 
same  as  Kansas  §  5149,  remainder  sub- 
stantially same  as  subs.  1  to  6  inclusive, 
Cal.  C.  C.  P.  §  564. 

n  Oregon,  §  1081,  substantially  same  as 
Alaska  C.  C.  P.   §  753. 

o  Texas,  Art.  1465,  substantially  same 
as  Cal.  C.  C.  P.  §  564,  except  substitute 
for  the  opening  passage  the  words  "Re- 
ceivers may  be  appointed  by  any  judge 
of  a  court  of  competent  jurisdiction  in 
this  state  in  the  following  cases";  also 
omit  subs.  3  and  4  of  Cal.  C.  C.  P.  §  564, 
and  renumber  subs.  5  and  6  to  3  and  4 
respectively. 

p  Washington,  §  741.  A  receiver  may 
be  appointed  by  the  court  in  the  follow- 
ing cases: 

1.  In  an  action  by  a  vendor  to  vacate 
a  fraudulent  purchase  of  property,  or  by 


a    creditor    to    subject    any    property    or 
fund    to    his    claim; 

2.  In  an  action  between  partners,  oi 
other  persons  jointly  interested  in  anj 
property  or  fund; 

3.  In  all  actions  where  it  is  shown  that 
the  property,  fund,  or  rents  and  profits  in 
controversy  are  in  danger  of  being  lost, 
removed,  or  materially  injured; 

4.  In  an  action  by  a  mortgagee  for  the 
foreclosure  of  a  mortgage  and  the  sale  of 
the  mortgaged  property,  when  it  appears 
that  such  property  is  in  danger  of  being 
lost,  removed,  or  materially  injured;  or 
when  such  property  is  insufficient  to  dis- 
charge of  the  debt,  to  secure  the  applica- 
tion of  the  rents  and  profits  accruing, 
before  a  sale  can  be  had; 

5.  When  a  corporation  has  been  dis- 
solved or  is  insolvent,  or  is  in  imminent 
danger  of  insolvency,  or  has  forfeited  its 
corporate  rights; 

6.  And  in  such  other  cases  as  may  be 
provided  for  by  law,  or  when,  in  the  dis- 
cretion of  the  court,  it  may  be  necessary 
to  secure  ample  justice  to  the  parties; 
provided,  that  no  party  or  attorney  or 
other  person  interested  in  an  action  shall 
be  appointed  receiver  therein. 

q  Wisconsin,  §  27S7.  A  receiver  may 
be  appointed: 

1.  Before  judgment,  on  the  applica- 
tion of  either  party,  when  he  establishes 
an  apparent  right  to  or  interest  in  prop- 
erty which  is  the  subject  of  the  action 
and  which  is  in  the  possession  of  an  ad- 
verse party,  and  the  property  or  its 
rents  and  profits  are  in  danger  of  being 
lost  or  materially   impaired. 

2.  By  the  judgment,  or  after  judgment, 
to  carry  the  judgment  into  effect  or  to 
dispose  of  the  property  according  to  the 
judgment. 

3.  After  judgment,  to  preserve  the 
property  during  the  pendency  of  an  ap- 
peal; or  when  an  execution  has  been  re- 
turned unsatisfied  and  the  judgment 
debtor  refuses  to  apply  his  property  in 
satisfaction  of  the  judgment  or  in  an 
action  by  a  creditor  under  section  3029. 

4.  In  cases  provided  by  any  statute 
when  a  corporation  has  been  dissolved  or 
is  insolvent  or  in  imminent  danger  of  in- 
solvency, or  has  forfeited  its  corporate 
rights. 

5.  In  such  cases  as  are  now  provided 
by  law  or  may  be  in  accordance  with  the 
existing  practice  except  as  otherwise 
provided  in  this  chapter. 


1706  RECEIVERS.  [Tit.  XV. 

r  Wyoming,  §4054.     A  receiver  may  be  debtor  refuses   to   apply  the  property  in 

appointed  by   the  district  court  or  by  a  satisfaction    of   the   judgment, 

judge  thereof,  in  the  following  cases:  5.  In  the  cases  provided  in   this  divis- 

[Subs.  1,  2  and  3  same  as  correspond-  ion,     and    by    special    statute,     when    a 

ing  sub-divisions  in  Cal.  C.  C.  P.   §  564.]  corporation     has     been    dissolved    or     is 

4.  After   judgment,    to    dispose    of    the  insolvent     or     in     imminent     danger     of 

property   according    to    the   judgment   or  insolvency  or  has  forfeited  its  corporate 

preserve   it   during   the   pendency   of   an  rights. 

appeal,   or  when   an   execution   has   been  6.   [Same    as    sub.    6   in   Cal.    C.    C.    P. 

returned    unsatisfied,    and    the   judgment  i  564.] 

§435.     PETITIONS  AND  ORDERS   FOR   LEAVE  TO  SUE. 
FORM   No.  1041 — Petition  for  leave  to  sue  a  receiver. 

[Title  of  court  and  cause.] 

To  the  court  for  County : 

1.  The  petition  of  respectfully  shows  to  the  court  that  on  the 

day  of  ,  19     ,  was,  by  an  order  of  this  court  duly 

given  and  made,  appointed  receiver  of  the  property  and  effects  of 

,  in  an  action  then  pending  in  this  court  [here  state  briefly 
the  nature  of  the  action]  ;  that  thereafter  said  duly  qualified 

as  such,  and  that  he  is  now  the  duly  qualified  and  acting  receiver  in 
said  matter. 

2.  That  said  receiver  has  now  in  his  possession,  claiming  title 
thereto  as  such  receiver,  certain  property  [here  describe  the  same]  ; 
that  your  petitioner  is  in  fact  the  owner  of  such  property,  but  that 
his  title  thereto  is  denied  by  the  said  receiver. 

3.  That  your  petitioner  has  demanded  of  said  receiver  that  he 
deliver  up  the  said  property  to  your  petitioner,  but  that  said  receiver 
refuses  so  to  do. 

4.  That  your  petitioner  has  fully  and  fairly  stated  the  case  [or  all 
the  facts]  to  ,  his  counsel,  whose  address  is  at  ,  and  upon 
such  statement  he  is  advised  by  his  said  counsel,  and  verily  believes, 
that  he  has  a  good  and  substantial  cause  of  action  against  the  said 
receiver  to  recover  possession  of  said  property.  [Or  state  any  other 
cause  of  action  existing  in  favor  of  the  petitioner  and  against  said 
receiver.] 

Wherefore,  your  petitioner  prays  that  leave  may  be  granted  to  him 
to    bring   an   action   in   the  court    for   the    county    of  , 

against  said  receiver,  to  recover  the  said  property  [or  state  the 
relief  prayed  for  in  the  action] ,  and  for  such  other  relief  thereupon 
as  to  the  court  may  seem  just. 

[Signature.] 

[Verification  as  in  case  of  a  pleading,  where  required.] 


Ch.  CXXV.]  PETITIONS,   ETC.— LEAVE   TO    SUE.  1707 

FORM   No.  1042 — Certificate  of  attorney  as  to  merits. 

I,  ,  attorney  for  said  petitioner,  do  hereby  certify  that  I  have 

examined  [or  know  of  my  own  knowledge]  all  the  facts  set  forth  in 
the  foregoing  petition,  and  that  in  my  opinion  the  petitioner  has  a 
valid  and  meritorious  cause  of  action  thereon. 

A.  B.,  Attorney  for  D.  E.,  Receiver,  etc. 

FORM   No.  1043 — Order  granting  leave  to  sue  a  receiver. 

[Title  of  court  and  cause.] 

The  petition  of  ,  having  come  on  to  be  heard  before  this 

court,  appearing  for  the  said  petitioner,  and  appearing 

for  the  said  receiver  [or,  no  one  appearing  in  opposition],  and  the 
court  being  now  fully  advised  in  the  premises : 

It  is  ordered,  that  leave  be  and  the  same  is  hereby  granted  to  the 
said  to  sue  said  receiver,  as  prayed  in  said  petition. 

By  the  court. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1044 — Petition  of  receiver  for  leave  to  sue. 

[Title  of  court.] 
In  the  matter  of  the  application > 
of  ,  as  receiver  of  , 

for  leave  to  bring  an  action 
against  .     [Or  the  applica- 

tion may  be  under  the  title  in 
the  action  or  proceeding  in 
which  the  receiver  was  ap- 
pointed.] 

To  the  court  of  the  state  of  ,  in  and  for  the  county 

of  : 

Your  petitioner  herein,  ,  as  receiver  of  ,  respectfully 

shows : 

1.  That  on  the  day  of  ,  19     ,  by  order  duly  given, 

made,   and   entered   in   the  court,   your   petitioner   was   duly 

appointed  receiver  of  [here  state  the  facts  relating  to  the  appoint- 
ment of  the  receiver]  ;  that  thereafter  your  petitioner  qualified  as 
such,  and  that  he  is  now  the  duly  appointed,  qualified,  and  acting 
receiver  in  said  matter. 


1708  RECEIVERS.  [Tit.  XV. 

2.  That  your  petitioner  is  advised,  and  verily  believes,  that  he,  as 
such  receiver,  has  a  good  cause  of  action  against  ,  by  reason 
of  the  following  facts :  [Here  state  concisely,  in  the  form  of  a  com- 
plaint, the  facts  constituting  the  cause  of  action.] 

3.  That  your  petitioner,  upon  diligent  inquiry,  is  informed  and 
believes,  and,  upon  such  information  and  belief,  alleges,  that  the 
said  is  solvent,  and  that  the  said  claim  is  collectable  from  him 
by  means  of  an  action  [or  otherwise  indicate  to  the  court  why  the 
action,  if  prosecuted,  will  be  of  advantage  to  the  estate  represented 
by  the  receiver]. 

4.  That  your  petitioner  has  sufficient  property  of  said  estate,  con- 
sisting of  [here  specify  what  property  is  in  the  receiver's  hands], 
to  secure  the  said  for  any  costs  which  he  may  recover  from 
your  petitioner  if  such  action  is  unsuccessful.  [If  the  receiver  was 
appointed  in  supplementary  proceedings,  state  that  this  application 
is  presented  at  the  instance  of  a  creditor,  and  aver  a  written  request 
of  such  creditor,  where  required  by  statute,  that  said  action  be 
brought,  and  annex  such  request.] 

5.  [Add,  if  this  application  is  the  first  made :]  That  no  previous 
application  for  such  leave  has  been  made. 

Wherefore,  your  petitioner  prays  for  leave  to  bring  an  action  as 
such  receiver  in  the  court  against  the  said  ,  on  the  cause 

of  action  hereinbefore  stated. 
Dated  ,  19    . 

,  Keceiver,  etc.,  petitioner. 
A.  B.,  Attorney  for  receiver. 
[Verification  in  the  form  required  for  a  complaint.] 

FORM   No.  1045 — Order  authorizing  receiver  to  sue. 

[Title  of  court  and  cause,  etc.] 

On  reading  and  filing  the  verified  petition  of  ,  receiver  for 

,  asking  for  leave  to  bring  an  action  against  on  the  fol- 

lowing cause  of  action:  [Here  state  briefly  the  nature  of  the 
action]  ;  and  on  due  proof  of  proper  service  of  a  notice  of  motion 
upon  this  application  on  [here  state  persons  on  whom  notices  of 
motion  were  served,  if  any],  and  after  hearing  ,  attorney  for 

said  receiver,  in  favor  of  said  motion,  and  ,  attorney  for  , 

in  opposition  thereto    [if  any  opposition  is  made],  and  the  court 


Ch.  CXXV.]  COMPLAINTS    [OR    PETITIONS].— FORMS.  1709 

being  satisfied  that  the  receiver  ought  to  be  authorized  to  bring  such 
action : 

Now,  on  motion  of  ,  attorney  for  said  receiver,  it  is  hereby 

ordered,  that  said  ,  as  such  receiver,   be  and  he  is  hereby 

authorized  and  directed  to  commence  and  prosecute  an  action  in 
such  court  as  he  may  be  advised  by  his  counsel,  against  the  said 
,  to  recover  upon  said  [here  state  the  debt  or  demand  to 
be  sued  upon],  and  such  other  and  further  relief  therein  as  may  be 
proper. 

[If  security  for  costs  is  required,  add  a  provision  to  that  effect ; 
or  if  the  receiver  has  sufficient  funds  in  his  hands  to  pay  such  costs, 
add,  where  permitted  by  statute  or  by  rule  of  court,  that  security 
for  costs  is  dispensed  with  by  reason  of  the  fact  that  the  receiver 
has  sufficient  to  pay  such  costs.] 

Dated  ,  19     .  S.  T.,  Judge. 

§436.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  1046 — By  a  receiver  appointed  by  a  court  in  an  action. 

[Title  of  court] 
John  Doe,  as  receiver  [etc.],' 

plaintiff, 
v. 
Richard  Roe,  defendant. 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  [State  the  original  cause  of  action.] 

2.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
was,  by  an  order  duly  given  and  made  in  the  court  of  the 
county  of  ,  state  of  ,  in  a  certain  action  then  pending 
between  A.  B.,  plaintiff,  and  C.  D.,  defendant,  numbered  , 
appointed  receiver  of  [state  the  property,  so  as  to  include  that 
involved  in  the  present  cause  of  action]. 

3.  That  on  the  same  day  [or  on  the  day  of  ,  19  ,]  he 
duly  qualified  as,  and  now  is,  such  receiver. 

4.  That  [plaintiff  demanded  payment  of  said  ,  but]  defend- 
ant has  not  paid  the  same,  nor  any  part  thereof. 

[Concluding  part.] 


1710  RECEIVERS.  [Tit.  XV. 

FORM   No.  1047 — By    receiver    of    a    mining    corporation    to    recover    assets 
belonging  thereto. 

(Modified  to  meet  suggestions  in  the  opinion:    Allen  v.  Baxter,  42 
Wash.  434;  85  Pac.  26.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges : 

1.  That  the  De  Soto  Placer  Mining  Company  is  a  foreign  corpora- 
tion, organized  under  the  laws  of  the  state  of  West  Virginia,  and 
authorized  to  transact  business  in  the  state  of  Washington. 

2.  That  during  all  the  times  hereinafter  mentioned,  and  until  the 
appointment  of  a  receiver,  the  said  corporation  was  maintaining  an 
office  in  the  city  of  Seattle,  King  County,  Washington,  where  service 
could  be  had  upon  the  said  corporation. 

3.  That  on  the  29th  day  of  March,  1904,  the  defendant  herein, 
Marion  B.  Baxter,  filed  her  complaint  in  this  court  against  the  said 
De  Soto  Placer  Mining  Company  as- defendant,  which  said  action  is 
docketed  and  numbered  as  No.  42,347,  wherein  she  is  to  recover  from 
the  said  defendant  for  services  rendered,  the  sum  of  $3,000. 

4.  That  afterwards,  to  wit,  on  March  30,  1904,  a  writ  of  attach- 
ment against  the  certain  property  of  the  said  De  Soto  Placer  Mining 
Company  hereinafter  described  was  sued  out,  and  issued  and  directed 
to  Frank  P.  Brewer,  sheriff  of  Snohomish  County,  Washington,  for 
service ;  that  the  said  Frank  P.  Brewer,  as  said  sheriff,  made  service 
of  the  said  writ  of  attachment  by  filing  the  same  with  the  auditor  of 
the  said  Snohomish  County;  that  the  said  De  Soto  Placer  Mining 
Company  duly  entered  its  appearance  by  general  denial  in  the  said 
action. 

5.  That  afterwards,  to  wit,  on  the  20th  day  of  October,  1904,  judg- 
ment was  rendered  in  favor  of  the  said  Marion  D.  Baxter  and  against 
the  said  De  Soto  Placer  Mining  Company  in  the  sum  of  $3,000,  with 
interest. 

6.  That  on  the  20th  day  of  October,  1904,  a  writ  of  execution 
against  the  property  hereinafter  described  was  issued  out  of  this 
court  and  directed  to  the  said  Frank  P.  Brewer,  as  sheriff  of  the  said 
Snohomish  County,  for  execution,  and  service  of  said  writ  was  made 
by  filing  the  same  with  the  auditor  of  said  county. 

7.  That  on  the  23d  day  of  July,  1904,  one  Arthur  G.  Mather  was 
regularly  appointed  as  receiver  for  all  the  property  and  assets  of  the 
said  De  Soto  Placer  Mining  Company,  in  an  action  wherein  one 


Ch.  CXXV.]  COMPLAINTS    [OR   PETITIONS].— FORMS.  1711 

Louis  L.  Lang  was  plaintiff,  and  the  said  De  Soto  Placer  Mining 
Company  was  defendant. 

8.  That  afterwards,  to  wit,  on  the  day  of  November,  1904, 
the  said  Arthur  G.  Mather  was,  at  his  own  request,  removed  as  said 
receiver,  and  the  plaintiff  herein  was,  on  the  16th  day  of  November, 
1904,  by  order  of  the  Hon.  George  E.  Morris,  judge  of  the  said  supe- 
rior court  of  King  County,  Washington,  appointed  as  receiver  of  the 
property  and  assets  of  the  said  De  Soto  Placer  Mining  Company. 

9.  That  the  plaintiff  before  the  commencement  of  this  action  duly 
made  and  filed  his  oath  and  qualified  as  such  receiver,  and  that  he  is 
now,  and  during  all  the  times  since  said  last-named  date  has  been, 
the  duly  qualified  and  acting  receiver  of  the  said  De  Soto  Placer 
Mining  Company. 

10.  That  at  the  time  of  the  filing  of  the  suit  of  the  said  Marion  B. 
Baxter  against  the  said  De  Soto  Placer  Mining  Company,  and  at  the 
time  of  the  issue  and  service  of  the  writ  of  attachment  thereunder, 
and  at  the  time  of  the  issue  and  service  of  the  writ  of  execution  and 
the  judgment  obtained  in  said  suit,  the  said  De  Soto  Placer  Mining 
Company  was  wholly  insolvent. 

11.  That  prior  to  all  the  dates  hereinbefore  mentioned,  to  wit,  on 
or  before  the  month  of  November  in  the  year  1903,  practically  all  of 
the  real  estate  and  personal  property  of  the  said  company  had  been 
conveyed,  transferred,  and  leased  to  the  said  company. 

12.  That  the  debts  and  liabilities  due  from  the  said  company  to  its 
creditors  at  the  time  of  the  filing  of  the  said  Marion  B.  Baxter's 
complaint  aggregated  approximately  the  sum  of  $90,000,  and  the 
property  and  assets  at  that  time  belonging  to  the  said  company  did 
not  then  exceed  in  value,  and  do  not  now  exceed  in  value,  the  sum  of 
$10,000,  including  the  property  hereinafter  described;  that  the  fol- 
lowing is  a  description  of  the  property  attached  and  levied  upon  ia 
the  proceedings  commenced  by  the  said  Marion  B.  Baxter  aforesaid, 
to  wit :  [Then  follows  a  long  list  of  real  property  and  mining  claims 
located  in  Snohomish  County,  Washington.] 

13.  That  the  said  Frank  P.  Brewer,  as  sheriff  of  Snohomish  County, 
is  authorized  to  sell  the  property  hereinbefore  described  in  the  said 
writ  of  attachment  under  said  execution. 

14.  That  there  is  little  or  no  property  of  the  said  company;  that 
should  sale  be  made  of  the  property  hereinbefore  described,  and  pro- 
ceeds thereof  appropriated,  the  said  Marion  B.  Baxter  will  receive 


1712  RECEIVERS.  [Tit.  XV. 

approximately  the  full  amount  of  her  claim  against  the  said  com- 
pany, while  the  other  creditors  herein  will  take  nothing. 

Wherefore,  the  plaintiff  prays :  That  the  claim  of  the  said  Marion 
B.  Baxter  be  declared  a  general  claim  against  the  said  corporation; 
that  the  levy  under  the  writ  of  attachment  and  the  levy  of  the  writ  of 
execution  sued  out  by  these  defendants  be  dissolved  and  set  aside; 
that  the  property  herein  be  given  into  the  control  of  the  receiver  as- 
an  asset  of  the  said  corporation;  and  that  the  plaintiff,  as  such 
receiver,  be  given  judgment  for  his  costs  herein  incurred. 

Byers  &  Byers,  and 
Clay  Allen, 

[Verification.]  Attorneys  for  plaintiff. 

FORM  No.  1048 — Action  against  a  receiver. 

[Title  of  court.] 
John  Doe,  plaintiff, 

v. 
Richard  Roe,  as  receiver 

[state  in  what  case  and 

of  what],  defendant. 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  [State  the  cause  of  action.] 

2.  That  the  defendant  is  the  receiver,  duly  appointed,  qualified, 
and  acting,  in  [state  what  case  and  of  what] . 

3.  [Here  allege  that  leave  to  sue  the  receiver  upon  said  cause  of 
action  was,  upon  due  application  to  the  court,  granted.] 

4.  That  [plaintiff  demanded  payment  of  said  ,  but]  said  sum 
has  not  been  paid,  nor  any  part  thereof. 

[Concluding  part] 

§437.     ANNOTATIONS. 

Averment  of  appointment. — Where  a  complaint  alleges  that  the  order  appointing 
a  receiver  was  "duly  made"  by  the  superior  court,  this,  under  the  rule  of  pleading 
declared  in  section  456  of  the  Code  of  Civil  Procedure  of  California,  is  equivalent  to 
an  averment  that  all  the  jurisdictional  prerequisites  to  the  appointment  of  a  receiver 
existed:  Title  Insurance  etc.  Co.  v.  Grider,  152  Cal.  746,  94  Pac.  601,  602,  (by  receiver, 
to  recover  moneys  from  sale  of  lots). 

Adverse  party  essential  to  proceedings. — The  provisions  of  the  Colorado  statute 
relating  to  the  appointment  of  receivers — Code  Civ.  Proa,  §§  141  (subs.  1,  3),  142 — 
are  construed  to  be  no  more  than  a  codification  of  the  law  in  practice  governing 
the  appointment  of  receivers  before  their  enactment;  and  it  is  evidently  necessary  to 
this  jurisdiction  in  all  these  proceedings  that  there  be  an  adverse  party  whose  right* 


Ch.  CXXVI.]  ANNOTATIONS.— CODE    PROVISIONS.  1713 

to  certain  property  are  to  be  protected  and  adjudicated:  Jones  v.  Bank  of  Leadville, 
10  Colo.  464,  17  Pac.   272,  276. 

When  court  may  appoint  receiver  of  Its  own  motion. — Where  an  action  is  brought 
under  a  statute  providing  in  itself  for  the  appointment  of  a  receiver,  where  a  cer- 
tain state  of  facts  exists, — as,  for  example,  the  insolvency  of  a  banking  corporation, 
— the  court  will  appoint  a  receiver  as  a  part  of  the  relief  sought  by  the  action,  and 
this  even  though  the  pleadings  offer  no  issue  in  that  behalf:  People  v.  Bank  of  San 
Luis  Obispo,  154  Cal.  194,  203,  97  Pac.  306. 

Receivers  to  administer  affairs  of  corporations. — When  appointment  invalid. — 
Courts  have  no  jurisdiction  to  appoint  a  receiver  except  in  a  suit  pending  in  which 
a  receiver  Is  desired,  unless  empowered  by  statute.  Under  this  doctrine,  proceed- 
ings instituted  upon  the  ex-parte  application  of  a  corporation  for  the  appointment 
of  a  receiver  to  take  charge  of  the  property  of  the  corporation  and  control  and 
protect  the  same  are  invalid;  for  to  permit  this  would  be  to  make  corporations  the 
administrators  of  every  estate  where  the  owners  thereof  were  incapable  or  unwill- 
ing to  administer  them  themselves:  Jones  v.  Bank  of  Leadville,  10  Colo.  469,  17  Pac. 
272,  276.  For  cases  illustrating  the  same  doctrine,  see  Baker  v.  Backus,  32  111.  79; 
Davis  v.  Flagstaff,  2  Utah  74;  French  Bank  case,  53  Cal.  495;  Kimball  v.  Goodburn, 
32  Mich.  10. 

Collateral  attack  of  order  appointing  receiver. — An  order  appointing  a  receiver  can 
not  be  collaterally  attacked  upon  any  ground  except  of  a  want  of  jurisdiction  to 
make  it:  Title  Insurance  etc.  Co.  v.  Grider,  152  Cal.  746,  94  Pac.  601,  602,  (by 
receiver  to  recover  moneys  from  sale  of  lots). 

For  actions  by  and  against  receivers  after  their  discharge,  see  note  to  7  Am.  & 
Eng.    Ann.    Cas.    44. 


CHAPTER   CXXVI. 

Deposit  in  Court. 

Page 

§  438.  Code  provisions    1713 

Form  No.  1049.  Motion  to  deposit  money   [or  other  personal 

property]  in  court   1714 

Form  No.  1050.  Order  for  deposit  in  court,  or  the  delivery  to 
another  party,  of  money  or  other  prop- 
erty        1715 

§438.     CODE  PROVISIONS. 

Deposit  in  Court. 

California,  §  572.  When  it  is  admitted  by  the  pleadings,  or  shown 
upon  the  examination  of  a  party  to  the  action,  that  he  has  in  his  pos- 
session, or  under  his  control,  any  money  or  other  thing  capable  of 
delivery,  which,  being  the  subject  of  litigation,  is  held  by  him  as 
trustee  for  another  party,  or  which  belongs  or  is  due  to  another 
party,  the  court  may  order  the  same,  upon  motion,  to  be  deposited 
in  court  or  delivered  to  such  party,  upon  such  conditions  as  may  be 
just,  subject  to  the  further  direction  of  the  court.  (Kerr's  Cyc.  Code 
Civ.  Proc.    Amended  March  20,  1907,  Stats,  and  Amdts.  1907,  p.  710.) 


1714.  DEPOSIT  IN  COURT.  [Tit.  XV. 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arizona,  Rev.  Stats.  1901,  If  1528.  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
§6358.  Colorado,  Rev.  Stats.  1908,  C.  C.  P.  §178.  Hawaii,  Rev.  Laws  1905, 
§  1759.  Idaho,  Rev.  Codes,  1909,  §  4339.  t>  Kansas,  Gen.  Stats.  1905  (Dassler),. 
§5154.  c  Minnesota,  Rev.  Laws  1905,  §4263.  Montana,  Rev.  Codes  1907, 
§  6705.  Nevada,  Comp.  Laws  Ann.  1900  (Cutting),  §  3240.  a  North  Dakota, 
Rev.  Codes  1905,  §6994.  e  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson), 
§4446;  Comp.  Laws  1909  (Snyder),  §5777.  « South  Dakota,  Rev.  Codes  1903, 
C.  C.  P.  §233.  Utah,  Comp.  Laws  1907,  §3120.  s  Washington,  Code  1910 
(Rem.  &  Bal.),  §745.  h  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §2793. 
i  Wyoming,  Rev.  Stats.  1899,  §4059. 

a  Arizona,    H  1528,     substantially    same  tempt,  and  may  also  require  the  sheriff 

as  Cal.   C.   C.   P.   §  572.     (Amended  Mch.  or  other  proper  officer  to  take  the  money 

19,  1903,  Laws  1903,  pp.  157,  15S.)  or  property  and  deposit  or  deliver  it  in 

b  Kansas,  §  5154,  substantially  same  as  accordance   with  the   direction  given." 

Cal.   C.   C.   P.    §  572,   except  in   the  third  d  North     Dakota,     §  6994,     substantially 

line  from  the  end,  omit  the  words  "upon  same  as  Kansas  §  5154. 

motion"    after   "same";    and    in    the    fol-  e  Oklahoma,   §4446,   substantially  same 

lowing  line  after   "party"   substitute  for  as  Kansas  §  5154. 

"upon   such   conditions  as   may  be  just"  t  South  Dakota,  C.  C.  P.  §  233,  substan- 

the    words    "with    or    without    security."  tially  same  as  Kansas  §  5154. 

(Re-enacted  Mch.  12,  1909,  Laws  1909,  p.  g  Washington,  §  745,  substantially  same 

329,  C.  C.  P.  §  271.)  as  Kansas  §  5154. 

c  Minnesota,   §  4263,  substantially  same  h  Wisconsin,   §  2793,  substantially  same 

as  Kansas  §  5154,  except  add  at  the  end  as  Kansas  §  5154. 

"If   such   order   be    disobeyed,    the   court  i  Wyoming,    §  4059,    substantially   same 

may  punish   the   disobedience  as   a  con-  as  Kansas  §  5154. 


FORM   No.  1049 — Motion  to  deposit  money  [or  other  personal   property]   in 
court. 

[Title  of  court  and  cause.] 

Now  comes  ,   [defendant,]   in  the  above-entitled  action  and 

moves  the  court  for  an  order  directing  him,  the  said  defendant,  to 
deposit  the  sum  of  $  [or  other  personal  property,  describing 

it]  in  court  [or  with  such  party  as  may  be  authorized  to  receive  the 
same],  to  abide  the  determination  of  this  action :  [Or  state  any  other 
conditions.]  Said  motion  is  made  upon  the  grounds  that  the  said 
money  [etc.]  is  held  by  defendant  as  trustee  for  ,  [or  that  said 

money  (etc.)  belongs  to  ,]  and  that  defendant  has  disclaimed 

in  his  [answer]  herein  any  interest  therein  or  right  thereto  as  ap- 
pears from  the  papers  and  proceedings  herein. 

A.  B.,  Attorney  for  defendant. 


Ch.  CXXVI.]  MOTION   AND   ORDER.— FORMS.  1715 

FORM   No.  1050— Order  for  deposit  in  court,  or  the  delivery  to  another  party, 
of  money  or  other  property. 

[Title  of  court  and  cause.] 

It  appearing  to  the  satisfaction  of  the  court  that  has  in  his 

possession  [or  under  his  control]  the  sum  of  $  [or  the  follow- 

ing-described personal  property,  to  wit:  (Here  describe  tfce  same)], 
which  sum  [or  property]  is  the  subject  of  litigation  in  this  action; 
that  the  same  is  held  by  him  as  trustee  for  ,  [or  which  belongs 

to,  or  is  due  to]  ,  and  that  he,  said  ,  [trustee,]  disclaims  any 

interest  therein  [or  it  appearing  on  the  examination  of  said  that 

he  has  no  interest  therein]  :  Now,  on  motion  of  ,  the  attorney  for 

,  it  is  ordered,  that  said  deposit  said  money  in  court  [or 

deliver  the  said  property  to  ,  who  is  hereby  authorized  to 

receive  the  same,]  upon  the  following  conditions:  [Describe  them], 
[he,  the  said  receiver  thereof,  to  hold  the  same]  subject  to  the  further 
direction  and  orders  of  the  court. 

[Date.]  S.  T.,  Judge. 


TITLE  XVI. 

Compensatory  and  Specific  Relief. 

Page 

Chapter  CXXVII.    Damages 1716 

CXXVIII.     Penalties  and  Forfeitures 1744 

CXXIX.     Specific  Performance 1755 

CXXX.     Kevision  or  Reformation  of  Contracts 1775 

CXXXI.    Rescission 1782 

CXXXII.     Cancelation  of  Instruments 1791 

[For  preventive  relief,  see  Injunction,  ch.  CXXIII.] 

CHAPTER  CXXVII. 

Damages. 

Page 

§  439.  Nature  and  extent  of  compensatory  relief 1716 

§  440.  Interest  as  damages 1719 

§  441.  Damages  for  breach  of  contracts,  generally 1722 

§  442.  Damages  for  breach  of  carriers'  obligations 1724 

§  443.  Damages  for  breach  of  contracts  relating  to  real  property 1725 

§  444.  Damages  for  breach  of  contracts  relating  to  personal  property. .  1728 

§  445.  Damages  for  wrongs  1730 

§  446.  Penal  damages    1737 

§  447.  Annotations 1742 

§439.     NATURE  AND  EXTENT  OF  COMPENSATORY  RELIEF. 

Species  of  relief  provided  by  the  code. 
California,  §  3274.  As  a  general  rule,  compensation  is  the  relief 
or  remedy  provided  by  the  law  of  this  state  for  the  violation  of 
private  rights,  and  the  means  of  securing  their  observance;  and 
specific  and  preventive  relief  may  be  given  in  no  other  cases  than 
those  specified  in  this  part  [relating  to  relief]  of  the  Civil  Code. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6038.     North  Dakota,  Rev.  Codes  1905,  §  6554. 
Oklahoma,  Rev.  and  Ann.  Stats.   1903    (Wilson),   §2721;    Comp.  Laws  1909 
(Snyder),  §2879.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §2284. 

Person  suffering  detriment  may  recover  damages. 
California,  §  3281.    Every  person  who  suffers  detriment  from  the 
unlawful  act  or  omission  of  another,  may  recover  from  the  person 

(1716) 


Ch.  CXXVII.]  COMPENSATORY  RELIEF.  jjjj 

in  fault  a  compensation  therefor  in  money,  which  is  called  damages. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6040.     North  Dakota,  Rev.  Codes  1905,  §  6556. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2723;    Comp.  Laws   1909 
(Snyder),  §  2881.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2286. 

Detriment  defined. 
California,  §  3282.    Detriment  is  a  loss  or  harm  suffered  in  person 
or  property.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6041.     North  Dakota,  Rev.  Codes  1905,  §  6557. 
Oklahoma,   Rev.   and  Ann.   Stats.   1903    (Wilson),   §2724;    Comp.  Laws   1909 
(Snyder),  §  2882.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2287. 

Detriment  resulting,  or  certain,  after  suit  brought. 
California,  §  3283.    Damages  may  be  awarded,  in  a  judicial  pro- 
ceeding, for  detriment  resulting  after  the  commencement  thereof, 
or  certain  to  result  in  the  future.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6042.     North  Dakota,  Rev.  Codes  1905,  §  6558. 
Oklahoma,  Rev.   and  Ann.   Stats.   1903    (Wilson),   §2725;    Comp.   Laws   1909 
(Snyder),  §  2883.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2288. 

Value,  how  estimated  in  favor  of  seller. 
California,  §  3353.  In  estimating  damages,  the  value  of  the  prop- 
erty to  a  seller  thereof  is  deemed  to  be  the  price  which  he  could  have 
obtained  therefor  in  the  market  nearest  to  the  place  at  which  it 
should  have  been  accepted  by  the  buyer,  and  at  such  time  after  the 
breach  of  the  contract  as  would  have  sufficed,  with  reasonable  dili- 
gence, for  the  seller  to  effect  a  resale.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6084.     North  Dakota,  Rev.  Codes  1905,  §  6597. 
Oklahoma.  Rev.  and  Ann.   Stats.   1903    (Wilson),   §2764;    Comp.   Laws   1909 
(Snyder),  §  2922.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2327. 

Limitation  of  damages. 
California,  §  3358.     Notwithstanding  the  provisions  of  this  chap- 
ter,  [as  to  measure  of  damages]   no  person  can  recover  a  greater 
amount  in  damages  for  the  breach  of  an  obligation  than  he  could 

Jury's  PI.— 109. 


j  7 1 S  DAMAGES.  [Tit.  XVI. 

have  gained  by  the  full  performance  thereof  on  both  sides,  except  in 
the  cases  specified  in  the  articles  on  exemplary  damages  and  penal 
damages,  and  in  section  thirty-three  hundred  and  nineteen,  thirty- 
three  hundred  and  thirty-nine,  and  thirty-three  hundred  and  forty. 
(Kerr's  Cyc.  Civ.  Code.) 

For  sections  referred  to  in  the  above  section,  see  page  1723  (§  3319),  page  1734 
(§  3339),  page  1738  (§  3340),  and  page  1737  et  seq.,  (sections  relating  to  exemplary 
damages). 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6086.     North  Dakota,  Rev.  Codes  1905,  §  6599. 
Oklahoma,  Rev.  and  Ann.   Stats.   1903    (Wilson),    §2766;    Comp.   Laws    1009 
(Snyder),  §  2924.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2329. 

Damages  to  be  reasonable. 
California,  §  3359.  Damages  must,  in  all  cases,  be  reasonable,  and 
where  an  obligation  of  any  kind  appears  to  create  a  right  to  uncon- 
scionable and  grossly  oppressive  damages,  contrary  to  substantial 
justice,  no  more  than  reasonable  damages  can  be  recovered.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

Montana,  Rev.  Codes  1907,  §  6087.  North  Dakota,  Rev.  Codes  1905,  §  6600. 
Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §2767;  Comp.  Laws  1909 
(Snyder),  §  2925.  South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2330.  »  Wisconsin, 
Stats.  1898   (San.  &  Ber.  Ann.),  §  2887. 

a  Wisconsin,  §2887.  Whenever  dam-  which  he  might  have  heretofore  recov- 
ages  are  recoverable  the  plaintiff  may  ered  for  the  same  cause  of  action,  ex- 
claim and  recover,  if  he  show  himself  cept  as  provided  otherwise  in  special 
entitled    thereto,    any    rate    of    damages  cases. 

Nominal  damages. 
California,  §  3360.    When  a  breach  of  duty  has  caused  no  appre- 
ciable detriment  to  the  party  affected,  he  may  yet  recover  nominal 
damages.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6088.     North  Dakota,  Rev.  Codes  1905.  §  6601. 
Oklahoma,  Rev.  and  Ann.  Stats.  1903    (Wilson),   §2768;    Comp.  Laws   1909 
(Snyder),  §2926.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §2331. 


Ch.  CXXVII.]  INTEREST  AS  DAMAGES.  1719 

§440.     INTEREST  AS  DAMAGES. 

Interest  recoverable  with  damages. 
California,  §  3287.  Every  person  who  is  entitled  to  recover  dam- 
ages certain,  or  capable  of  being  made  certain  by  calculation,  and 
the  right  to  recover  which  is  vested  in  him  upon  a  particular  day, 
is  entitled  also  to  recover  interest  thereon  from  that  day,  except 
during  such  time  as  the  debtor  is  prevented  by  law,  or  by  the  act 
of  the  creditor,  from  paying  the  debt. 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6043.     North  Dakota,  Rev.  Codes  1905,  §  6559. 
Oklahoma,   Rev.   and   Ann.   Stats.   1903    (Wilson),   §2726;    Comp.   Laws    1909 
(Snyder),  §  2884.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2289. 

Interest  in  actions  not  arising  from  breach  of  contract. 
California,  §  3288.     In  an  action  for  the  breach  of  an  obligation 
not  arising  from  the  contract,  and  in  every  case  of  oppression,  fraud, 
or  malice,   interest  may  be   given,  in  the  discretion   of  the  jury. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Missouri,  Ann.  Stats.  1906,  §2869.  Montana,  Rev.  Codes  1907,  §6044. 
b  New  Mexico,  Comp.  Laws  1897,  §  3219.  North  Dakota,  Rev.  Codes  1905. 
§6560.  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §2727;  Comp.  Laws 
1909  (Snyder),  §2885.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §2290. 

a  Missouri,     §  2869.     The    jury    on    the  over  and  above  the  value  of  the  goods  at 

trial  of  any  issue,  or  on  any  inquisition  the  time  of  the  conversion  or  seizure, 

of  damages,  may,  if  they  shall  think  fit,  b  New      Mexico,      §  3219,     substantially 

give  damages,  in  the  nature  of  interest,  same  as  Missouri  §  2869. 

Rate  stipulated  by  contract — When  superseded. 
California,  §  3289.    Any  legal  rate  of  interest  stipulated  by  a  con- 
tract remains  chargeable  after  a  breach  thereof,  as  before,  until  the 
contract  is  superseded  by  a  verdict  or  other  new  obligation.     (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arizona,  Rev.  Stats.  1901,  II  2774.  b  Arkansas,  Dig.  of  Stats.  1904  (Kirby), 
§5388.  c  Colorado,  Rev.  Stats.  1908,  §3163.  <J  Iowa,  Ann.  Code  1897,  §3039. 
•  Kansas,  Gen.  Stats.  1905  (Dassler),  §3721.  t  Minnesota,  Rev.  Laws  1905, 
§2733.     b  Missouri,   Ann.   Stats.   1906,    §3707.     *>  Montana,   Rev.    Codes    1907, 


1720 


DAMAGES. 


[Tit.  XVI. 


§6045.  I  Nebraska,  Comp.  Stats.  Ann.  1909,  §4119;  Ann.  Stats.  (Cobbey), 
§6752.  J  Nevada,  Comp.  Laws  Ann.  1900  (Cutting),  §2746.  k  New  Mexico, 
Comp.  Laws  1897,  §  2551.  North  Dakota,  Rev.  Codes  1905,  §  5515.  Oklahoma. 
Rev.  and  Ann.  Stats.  1903  (Wilson),  §  851;  Comp.  Laws  1909  (Snyder),  §  1158. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  1421.  I  Utah,  Comp.  Laws  1907, 
§  1241x9.    m  Washington,  Code  1910  (Rem.  &  Bal.),  §  457. 


a  Arizona,  U  2774.  In  the  absence  of 
an  agreement  in  writing,  signed  by  the 
debtor,  interest  shall  be  paid  at  the 
rate  of  six  per  cent  per  annum  on 
money  due  on  any  bond,  bill,  promis- 
sory note,  or  other  instrument  in  writ- 
ing, on  judgments,  on  money  lent,  on 
the  sum  due  on  accounts  stated,  on  the 
sum  due  from  the  time  it  is  audited 
from  the  territory,  any  county,  city  or 
village;  provided,  however,  a  different 
rate  of  interest,  not  to  exceed  twelve 
per  cent  per  annum,  if  agreed  to  in  writ- 
ing, signed  by  the  payor,  shall  be  paid. 
A  judgment  rendered  on  such  agree- 
ment shall  bear  the  rate  of  interest 
provided  for  in  the  agreement,  and  it 
shall  be  so  specified  in  the  judgment. 

Any  person  so  contracting  for  a 
greater  rate  of  interest  than  twelve  per 
cent  per  annun  shall  forfeit  all  inter- 
est so  contracted  for  in  excess  of  such 
twelve  per  cent;  and  in  addition  there- 
to, shall  forfeit  a  sum  of  money  to  be 
deducted  from  the  amount  due  for  prin- 
cipal and  lawful  interest,  equal  to  the 
amount  of  interest  contracted  for  in 
excess  of  twelve  per  cent  per  annum. 

All  payments  of  money  or  property 
made  by  way  of  usurious  interest,  or 
of  inducements  to  contract  for  more 
than  twelve  per  cent  per  annum, 
whether  made  in  advance  or  not,  shall 
be  deemed  and  taken  to  be  payments 
made  on  account  of  the  principal  and 
twelve  per  cent  per  annum,  and  the 
courts  shall  render  judgment  for  no 
greater  sum  than  the  balance  found  due 
after  deducting  the  payments  of  money 
or  property  made  as  aforesaid.  (Amended 
March  18,  1909,  Laws  1909,  p.  221.) 

b  Arkansas,  §  5388.  Judgments  or  de- 
crees upon  contracts  bearing  more  than 
six  per  cent  interest  shall  bear  the  same 
interest  as  may  be  specified  in  such 
contracts  and  the  rate  of  interest  shall 
be  expressed  in  such  judgments  and 
decrees  and  all  other  judgments  and 
decrees  shall  bear  interest  at  the  rate 
of  six  per  cent  per  annum  until  satis- 
faction is  made;  provided,  no  judgment 
rendered  or  to  be  rendered  against  any 


county  in  the  state  on  county  warrants 
or  other  evidences  of  county  indebted- 
ness shall  bear  any  interest  after  the 
passage  of  this  act. 

c  Colorado,  §  3163.  The  parties  to  any 
bond,  bill,  promissory  note,  or  other  in- 
strument of  writing,  may  stipulate 
therein  for  the  payment  of  a  greater  or 
higher  rate  of  interest  than  eight  per 
centum  per  annum,  and  any  such  stip- 
ulation may  be  enforced  in  any  court  of 
competent  jurisdiction   in   the   state. 

d  Iowa,  §  3039.  Interest  shall  be  al- 
lowed on  all  money  due  on  judgments 
and  decrees  of  courts  at  the  rate  of  six 
cents  on  the  hundred  by  the  year,  un- 
less a  different  rate  is  fixed  by  the  con- 
tract on  which  the  judgment  or  decree 
is  rendered,  in  which  case  the  judgment 
or  decree  shall  draw  interest  at  the 
rate  expressed  in  the  contract,  not  ex- 
ceeding eight  cents  on  the  hundred  by 
the  year,  which  rate  must  be  expressed 
in  the  judgment  or  decree. 

e  Kansas,  §  3721.  When  a  rate  of  in- 
terest is  specified  in  any  contract,  that 
rate  shall  continue  until  full  payment  is 
made,  and  any  judgment  rendered  on  any 
such  contract  shall  bear  the  same  rate  of 
interest  mentioned  in  the  contract,  which 
rate  shall  be  specified  in  the  judgment; 
but  in  no  case  shall  such  rate  exceed  ten 
per  cent  per  annum,  and  any  bond,  note 
bill,  or  other  contract  for  the  payment  of 
money,  which  in  effect  provides  that 
any  interest  or  any  higher  rate  of  in- 
terest shall  accrue  as  a  penalty  for  any 
default,  shall  be  void  as  to  any  such 
provision. 

t  Minnesota,  §  2733.  The  interest  for 
any  legal  indebtedness  shall  be  at  the 
rate  of  six  dollars  upon  one  hundred  dol- 
lars for  a  year,  unless  a  different  rate  is 
contracted  for  in  writing;  and  no  person 
shall  directly  or  indirectly  take  or  re- 
ceive in  money,  goods,  or  things  in  ac- 
tion, or  in  any  other  way,  any  greater 
sum,  or  any  greater  value,  for  the  loan 
«r  forbearance  of  money,  goods,  or 
things  in  action,  than  ten  dollars  on  one 
hundred  dollars  for  one  year;  and  In  the 


Ch.  CXXVII.] 


INTEREST  AS  DAMAGES. 


1721 


computation  of  interest  upon  any  bond, 
note,  or  other  instrument  or  agreement 
interest  shall  not  be  compounded,  but  any 
contract  to  pay  interest,  not  usurious, 
upon  interest  overdue,  shall  not  be  con- 
strued to  be  usury.  Contracts  shall 
bear  the  same  rate  of  interest  after 
they  become  due  as  before,  and  any  pro- 
vision in  any  contract,  note,  or  instru- 
ment providing  for  an  increase  of  the 
rate  of  interest  after  maturity,  or  any 
increase  therein  after  making  and  deliv- 
ery, shall  work  a  forfeiture  of  the  entire 
interest;  but  this  provision  shall  not  ap- 
ply to  notes  or  contracts  which  bear  no 
interest  before  maturity. 

g  Missouri,  §  3707.  Interest  shall  be 
allowed  on  all  money  due  upon  any  judg- 
ment or  order  of  any  court,  from  the  day 
of  rendering  the  same  until  satisfaction 
be  made  by  payment,  accord  or  sale  of 
property;  all  such  judgments  and  orders 
for  money  upon  contracts  bearing  more 
than  six  per  cent  interest  shall  bear  the 
same  interest  borne  by  such  contracts, 
and  all  other  judgments  and  orders  for 
money  shall  bear  six  per  cent  per  an- 
num until  satisfaction  made,  as  afore- 
said. 

h  Montana,  §  6045,  substantially  same 
as  Cal.  Civ.  Code  §  32S9,  except  in  the 
last  line  after  "verdict"  the  word  "or"  is 
printed  "of." 

i  Nebraska,  §  4119.  Interest  on  all  de- 
crees and  judgments  for  the  payment  of 
money  shall  be  from  the  date  of  the  ren- 
dition thereof  at  the  rate  of  seven  dol- 
lars upon  each  one  hundred  dollars  an- 
nually until  the  same  shall  be  paid;  pro- 
vided, that  if  said  judgment  or  decree 
shall  be  founded  upon  any  contract, 
either  verbal  or  written,  by  the  terms  of 
which  a  greater  rate  of  interest,  not  ex- 
ceeding the  amount  allowed  by  law,  than 


seven  per  centum  shall  have  been  agreed 
upon,  the  rate  of  interest  upon  such 
judgi.ient  or  decree  shall  be  the  same  as 
provided  for  by  the  terms  of  the  con- 
tract upon  which  the  same  was  founded. 

i  Nevada,  §  2746.  Parties  may  agree, 
in  writing,  for  the  payment  of  any  rate 
of  interest  whatever  on  money  due,  or 
to  become  due,  on  any  contract.  Any 
judgment  rendered  on  such  contract,  shall 
conform  thereto,  and  shall  bear  the  in- 
terest agreed  upon  by  the  parties,  and 
which  shall  be  specified  in  the  judgment; 
provided,  only  the  amount  of  the  origi- 
nal claim  or  demand  shall  draw  interest 
after  judgment. 

k  New  Mexico,  §  2551.  Judgments  and 
decrees  for  the  payment  of  money  shall 
draw  the  same  rate  of  interest  with  the 
contract  on  which  they  are  rendered, 
and  such  rate,  if  other  than  six  per  cent 
shall  be  expressed  in  the  judgment  or 
decree,  but  no  judgment  or  decree  shall 
draw  more  than  twelve  per  cent  interest. 

1  Utah,  §  1241x9.  Any  judgment  ren- 
dered on  a  lawful  contract  shall  conform 
thereto  and  shall  bear  the  interest 
agreed  upon  by  the  parties,  which  shall 
be  specified  in  the  judgment;  other  judg- 
ments shall  bear  interest  at  the  rate  of 
eight  per  cent  per  annum,  which  shall  be 
specified  in  the  judgment. 

m  Washington,  §  457.  Judgments  here- 
after rendered  founded  on  written  con- 
tracts, providing  for  the  payment  of  in- 
terest until  paid  at  a  specified  rate,  shall 
bear  interest  at  the  rate  specified  in 
such  contracts,  not  in  any  case,  how- 
ever, to  exceed  ten  per  cent  per  annum: 
Provided,  that  said  interest  rate  is  set 
forth  in  the  judgment;  and  all  other 
judgments  shall  bear  interest  at  the  rate 
of  six  per  centum  per  annum  from  date 
of  entry  thereof. 


Acceptance  of  principal  waives  claim  to  interest. 

California,  §  3290.  Accepting  payment  of  the  whole  principal,  as 
such,  waives  all  claim  to  interest.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

Montana,  Rev.  Codes  1907,  §  6046.  a  North  Dakota,  Rev.  Codes  1905,  §  6561 
Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §2728;  Comp.  Laws  1909 
(Snyder),  §2886.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §2291. 


1722  DAMAGES.  [Tit.  XVI 

a  North   Dakota,  §  6561,  substantially  same  as  Cal.  Civ.  Code  §  3290,  except  at  the 
end  after  "interest"  add  "unless  interest  is  expressly  provided  for  in  the  contract." 


§441.     DAMAGES  FOR  BREACH  OF  CONTRACTS,  GENERALLY. 

Measure  of  damages  for  breach  of  contract. 
California,  §  3300.  For  the  breach  of  an  obligation  arising  from 
contract,  the  measure  of  damages,  except  where  otherwise  expressly 
provided  by  this  code,  is  the  amount  which  will  compensate  the 
party  aggrieved  for  all  the  detriment  proximately  caused  thereby, 
or  which,  in  the  ordinary  course  of  things,  would  be  likely  to  result 
therefrom.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6048. 
b  North  Dakota,  Rev.  Codes  1905,  §6563.  c  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2730;  Comp.  Laws  1909  (Snyder),  §2888.  a  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2293. 

a  Hawaii,  §  1745.     The  measure  of  dam-  property,    real  or  personal,   the  measure 

ages  in  all  cases  contemplated  by  section  of  damages  shall  be  determined  by  the 

1712,  shall  be  according  to  the  true  legal  jury. 

interpretation  of  the  court  upon  the  law,  b  North    Dakota,    §  6563,    first   sentence 

instrument,   contract  or  agreement;   and  same  as  Cal.  Civ.  Code  §  3300. 
in   all   cases   of  injury,    direct  or   conse-  c  Oklahoma,   §  2730,   first  sentence  sub- 

quential,    to    the   plaintiff    in    person,    or  stantially  same  as  Cal.  Civ.  Code  §  3300. 
his  wife,  child  or  servant,  or  to  his,  her,  d  South    Dakota,  Civ.  Code  §  2293,   first 

or  their  character  or  feelings,  or  to  his  sentence  same  as  Cal.  Civ.  Code  §  3300. 

Damages  must  be  ascertainable. 
California,  §  3301.     No  damages  can  be  recovered  for  a  breach  of 
contract  which  are  not  clearly  ascertainable  in  both  their  nature  and 
origin.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

Montana,  Rev.  Codes  1907,  §  6049.  a  North  Dakota,  Rev.  Codes  1905,  §  6563. 
s>  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §2730;  Comp.  Laws  1909 
(Snyder),  §2888.     c  South  Dakota,  Rev.  Codes  1903,  C.  C.  §2293. 

a  North  Dakota,  §  6563,  last  sentence  same  as  Cal.  Civ.  Code  §  3301. 

b  Oklahoma,  §  2730,  last  sentence  same  as  Cal.  Civ.  Code  §  3301. 

<•  South  Dakota,  C.  C.  2293,  last  sentence  same  as  Cal.  Civ.  Code  §  3301. 


Ch.CXXVIL]        BREACH   OF   CONTRACTS,   GENERALLY.  1723 

Detriment  for  breach  of  obligation  to  pay  money. 
California,  §  3302.     The  detriment  caused  by  the  breach  of  an  ob- 
ligation to  pay  money  only,  is  deemed  to  be  the  amount  due  by  the 
terms  of  the  obligation,  with  interest  thereon.     (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6050.  North 
Dakota,  Rev.  Codes  1905.  §  6564.  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §2731;  Comp.  Laws  1909  (Snyder),  §2889.  South  Dakota,  Rev. 
Codes  1903,  C.  C.  §  2294. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 


Breach  of  warranty  of  agent's  authority. 
California,  §  3318.  The  detriment  caused  by  the  breach  of  a  war- 
ranty of  an  agent's  authority,  is  deemed  to  be  the  amount  which 
could  have  been  recovered  and  collected  from  his  principal  if  the 
warranty  had  been  complied  with,  and  the  reasonable  expenses  oi. 
legal  proceedings  taken,  in  good  faith,  to  enforce  the  act  of  the  agent 
against  his  principal.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6066.  North 
Dakota,  Rev.  Codes  1905,  §  6580.  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §2747;  Comp.  Laws  1909  (Snyder),  §2905.  South  Dakota,  Rev. 
Codes  1903.  C.  C.  §  2310. 

a  Hawaii,  $  1745,  see  note  a  to  Cal.  Civ.  Code  |  3300,  page  1722. 


Breach  of  promise  of  marriage. 
California,  §  3319.     The  damages  for  the  breach  of  a  promise  of 
marriage  rest  in  the  sound  discretion  of  the  jury.     (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  b  Montana,  Rev.  Codes  1907,  §  6067. 
North  Dakota,  Rev.  Codes  1905,  §  6581.  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2748;  Comp.  Laws  1909  (Snyder),  §2906.  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2311. 


1724  DAMAGES.  [Tit.  XVI. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  p.  1722. 

b  Montana,  §  6067,  substantially  same  as  Cal.  Civ.  Code  §  3319,  except  in  the  last 
line  after  discretion  "of"  is  printed  "for." 

§442.     DAMAGES  FOR  BREACH  OF  CARRIERS'  OBLIGATIONS. 

Breach  of  carrier's  obligation  to  accept  freight,  passengers,  etc. 

California,  §  3315.  The  detriment  caused  by  the  breach  of  a  car- 
rier's obligation  to  accept  freight,  messages,  or  passengers,  is  deemed 
to  be  the  difference  between  the  amount  which  he  had  a  right  to 
charge  for  the  carriage  and  the  amount  which  it  would  be  necessary 
to  pay  for  the  same  service  when  it  ought  to  be  performed.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6063.  North 
Dakota,  Rev.  Codes  1905,  §  6577.  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wil- 
son), §2744;  Comp.  Laws  1909  (Snyder),  §2902.  South  Dakota,  Rev.  Codes 
1903,  C.  C.  §2307.    b  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  321. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  goods,   as  above  provided,   taking  In   the 

Code  §3300,  page  1722.  same    in    the    order    presented,    shall    be 

b  Texas,  Art.  321.     Upon  the  tender  of  liable  to  the  party  injured  for  damages 

the  legal  or  customary   rates   of  freight  sustained  by  reason  of  his  refusal,   and 

on    goods    offered   for    transportation,    to  shall   also   be  liable   to  a  penalty  of  not 

any  common  carrier  whatever  such  car-  less   than  five   nor   more   than   five   hun- 

rier    shall    receive    and    transport    such  dred  dollars,  to  be  recovered  in  each  case 

goods,  provided  his  vehicle  or  vessel  has  by  the  owner  of  the  goods  in  any  court 

capacity  safely  to  carry  the  goods  so  of-  having  jurisdiction  in  the  county  where 

fered  on  the  trip  or  voyage  then  pending,  the  wrong  is  done  or  where  the  common 

and  such  goods  are  of  the  kind  usually  carrier    resides;     provided,     this     article 

carried  upon  such  vehicle  or  vessel,  and  shall  not  affect  such  corporations  as  are 

are  offered  at  a  reasonable  time.     Any  embraced  in  article  4496  of  these  stat- 

common    carrier    refusing    to    transport  utes. 

Breach  of  carrier's  obligation  to  deliver  freight. 
California,  §  3316.  The  detriment  caused  by  the  breach  of  a  car- 
rier's obligation  to  deliver  freight,  where  he  has  not  converted  it  to 
his  own  use,  is  deemed  to  be  the  value  thereof  at  the  place  and  on 
the  day  at  which  it  should  have  been  delivered,  deducting  the 
freightage  to  which  he  would  have  been  entitled  if  he  had  completed 
the  delivery.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

*  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6064.  North 
Dakota.    Rev.    Codes    1905,    §  6578.      Oklahoma,    Rev.    and    Ann.    Stats.    1903 


Jh.  CXXVIL]  BREACH    OF   CARRIERS-    CONTRACTS.  1725 

(Wilson),   §2745;    Comp.  Laws   1909    (Snyder),   §2903.     South   Dakota,  Rev. 
Codes  1903,  C.  C.  §  2308.    b  Texas,  Civ.  Stats.  1897  (Sayles),  Art.  322. 

a  Hawaii,  S  1745,  see  note  *  to  Cal.  Civ.  tear  and  deterioration  in  due  course  of 

Code  §  3300,  page  1722.  transportation     only    excepted;     and     in 

b  Texas,    Art.    322.     Common    carriers  case  such  common   carrier  shall   fail   to 

are   required,    when    they    receive    goods  deliver    goods    as    above    required,    they 

for  transportation,    to  give   to   the   ship-  shall   be   liable   to   the   party   injured   for 

per,  when  it  is  demanded,  a  bill  of  lad-  his  damages,  as  at  common  law;  and  in 

ing  or  memorandum   in  writing,   stating  case  such  common  carrier[s]  shall  fail  to 

the  quantity,   character,   order  and   con-  liver  a  bill  of  lading  or  memorandum  in 

dition  of  the  goods;  and  such  goods  shall  writing,  as  above  required,  they  shall  be 

be  delivered,  in  the  manner  provided  by  liable  to  a  penalty  of  not  less  than  five 

common  law,  in  like  order  and  condition  nor  more  than  five  hundred  dollars,  to  be- 

to  consignee,   the  unavoidable  wear  and  recovered  as  in  the  preceding  article. 


Detriment  caused  by  carrier's  delay  in  delivery. 
California,  §  3317.  The  detriment  caused  by  a  carrier's  delay  in 
the  delivery  of  freight,  is  deemed  to  be  the  depreciation  in  the  intrin- 
sic value  of  the  freight  during  the  delay,  and  also  the  depreciation, 
if  any,  in  the  market  value  thereof,  otherwise  than  by  reason  of  a 
depreciation  in  its  intrinsic  value,  at  the  place  where  it  ought  to  have 
been  delivered,  and  between  the  day  at  which  it  ought  to  have  been 
delivered,  and  the  day  of  its  actual  delivery.  (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
ncte  succeeding  and  the  difference  there  shown: 

*  Hawaii,  Rev.  Laws  1905,  §  1745.  b  Montana,  Rev.  Codes  1907,  §  6065. 
North  Dakota,  Rev.  Codes  1905,  §  6579.  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2746:  Comp.  Laws  1909  (Snyder),  §2904.  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2309. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 
b  Montana,  §  6065,  substantially  same  as  Cal.  Civ.  Code  §  3317,  except  in  the  second 
line  the  words  "the  depreciation"  are  omitted  between  "to  be"  and  "in  the." 

§443.   DAMAGES    FOR    BREACH    OF   CONTRACTS    RELATING   TO    REAL 
PROPERTY. 

Detriment  caused  by  breach  of  covenant  of  seizin,  etc. 

California,  §  3304.  The  detriment  caused  by  the  breach  of  a  cove- 
nant of  "seizin,"  of  "right  to  convey,"  of  "warranty,"  or  of  "quiet 
enjoyment,"  in  a  grant  of  an  estate  in  real  property,  is  deemed  to  be : 

1.  The  price  paid  to  the  grantor ;  or,  if  the  breach  is  partial  only, 
such  proportion  of  the  price  as  the  value  of  the  property  affected  by 


1726  DAMAGES.  [Tit.  XVI. 

the  breach  bore  at  the  time  of  the  grant  to  the  value  of  the  whole 
property ; 

2.  Interest  thereon  for  the  time  during  which  the  grantee  derived 
no  benefit  from  the  property,  not  exceeding  five  years; 

3.  Any  expenses  properly  incurred  by  the  covenantee  in  defend- 
ing his  possession.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

•  Hawaii,  Rev.  Laws  1905,  §1745.  Montana,  Rev.  Codes  1907,  §6052. 
o  North  Dakota,  Rev.  Codes  1905,  §6566.  c  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2733;  Comp.  Laws  1909  (Snyder),  §2891.  <*  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2296. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  c  Oklahoma,  §  2733,  same  as  North  Da- 
Code  §  3300,  page  1722.  kota  §  6566. 

b  North     Dakota,    §  6566,    substantially  d  South  Dakota,  Civ.  Code  §  2296,  same 

same    as    Cal.    Civ.    Code    §  3304,    except  as  North  Dakota  g  6566. 
near  the  end  of  sub.  2,  change  "five"  to 
■"six"  before  "years." 

Detriment  caused  by  breach  of  covenant  against  encumbrances. 

California,  §  3305.  The  detriment  caused  by  the  breach  of  a  cove- 
nant against  encumbrances  in  a  grant  of  an  estate  in  real  property  is 
deemed  to  be  the  amount  which  has  been  actually  expended  by  the 
covenantee  in  extinguishing  either  the  principal  or  interest  thereof, 
not  exceeding  in  the  former  case  a  proportion  of  the  price  paid  to  the 
grantor  equivalent  to  the  relative  value  at  the  time  of  the  grant  of 
the  property  affected  by  the  breach,  as  compared  with  the  whole,  or, 
in  the  latter  case,  interest  on  a  like  amount.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §1745.  t>  Minnesota,  Rev.  Laws  1905,  §3345. 
Montana,  Rev.  Codes  1907,  §  6053.  North  Dakota,  Rev.  Codes  1905,  §  6567. 
Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §2734;  Comp.  Laws  1909 
(Snyder),  §2892.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §2297. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 

b  Minnesota,  §  3345.  Whoever  conveys  real  estate  by  deed  or  mortgage  containing 
a  covenant  that  it  is  free  from  all  encumbrances,  when  an  encumbrance,  whether 
known  to  him  or  not,  appears  of  record  to  exist  thereon,  but  does  not  exist  in  fact, 
shall  be  liable  in  an  action  of  contract  to  the  grantee,  his  heirs,  executors,  admin- 
istrators, successors,  or  assigns,  for  all  damages  sustained  in  removing  the  sanr.e. 


Ch.  CXXVII.]  ON   REAL    PROPERTY    CONTRACTS.  1727 

Breath  of  agreement  to  convey  real  estate. 

California,  §  3306.  The  detriment  caused  by  the  breach  of  an 
agreement  to  convey  an  estate  in  real  property,  is  deemed  to  be  the 
price  paid,  and  the  expenses  properly  incurred  in  examining  the 
title  and  preparing  the  necessary  papers,  with  interest  thereon ;  but 
adding  thereto,  in  case  of  bad  faith,  the  difference  between  the  price 
agreed  to  be  paid  and  the  value  of  the  estate  agreed  to  be  conveyed, 
at  the  time  of  the  breach,  and  the  expenses  properly  incurred  in  pre- 
paring to  enter  upon  the  land.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  material^  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6054. 
b  North  Dakota,  Rev.  Codes  1905,  §  6568.  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2735;  Comp.  Laws  1909  (Snyder),  §2893.  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2298. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  to  be  conveyed  at  the  time  of  the  breach 

Code  §  3300,  page  1722.  and    the    expenses    properly    incurred    in 

b  North  Dakota,  §  6568.     The  detriment  examining  the  title  with  interest  thereon, 

caused  by  the  breach  of  an  agreement  to  and  in  preparing  to  enter  upon  the  land 

convey  an  estate  in  real  property  is  the  and    the    amount   paid    on    the    purchase 

difference  between  the  price  agreed  to  be  price,  if  any,  with  interest  thereon  from 

paid  and  the  value  of  the  estate  agreed  the  time  of  the  breach. 

Breach  of  agreement  to  buy  real  estate. 

California,  §  3307.  The  detriment  caused  by  the  breach  of  an 
agreement  to  purchase  an  estate  in  real  property,  is  deemed  to  be  the 
excess,  if  any,  of  the  amount  which  would  have  been  due  to  the 
seller,  under  the  contract,  over  the  value  of  the  property  to  him. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6055. 
b  North  Dakota,  Rev.  Codes  1905,  §  6569.  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2736;  Comp.  Laws  1909  (Snyder),  §2894.  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2299. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  33(0,  page  1722. 

b  North  Dakota,  §  6569,  substantially  same  as  Cai.  Civ.  Code  §  3307,  except  at  tha 
end  omit  "to  him"  after  "property." 


172S  DAMAGES.  [Tit.  XVI. 

§444.     DAMAGES    FOR    BREACH    OF   CONTRACTS    RELATING   TO    PER- 
SONAL  PROPERTY. 

Breach  of  agreement  to  deliver  personal  property  not  paid  for. 

California,  §  3308.  The  detriment  caused  by  the  breach  of  a  seller's 
agreement  to  deliver  personal  property,  the  price  of  which  has  not 
been  fully  paid  in  advance,  is  deemed  to  be  the  excess,  if  any,  of  the 
value  of  the  property  to  the  buyer,  over  the  amount  which  would 
have  been  due  to  the  seller  under  the  contract,  if  it  had  been  ful- 
filled.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6056.  North 
Dakota,  Rev.  Codes  1905,  §  6570.  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §2737;  Comp.  Laws  1909  (Snyder),  §2895.  South  Dakota,  Rev. 
Codes  1903,  C.  C.  §  2300. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 


Breach  of  agreement  to  deliver  personal  property  paid  for. 

California,  §  3309.  The  detriment  caused  by  the  breach  of  a 
seller's  agreement  to  deliver  personal  property,  the  price  of  which 
has  been  fully  paid  to  him  in  advance,  is  deemed  to  be  the  same  as 
in  case  of  wrongful  conversion.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §1745.  Montana,  Rev.  Codes  1907,  §6057. 
North  Dakota,  Rev.  Codes  1905,  §  6571.  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2738;  Comp.  Laws  1909  (Snyder),  §2896.  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2301. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 

Breach  of  agreement  to  accept  and  pay  for  personal  property  sold 

California,  §  3310.  The  detriment  caused  by  the  breach  of  a  buy- 
er's agreement  to  accept  and  pay  for  personal  property,  the  title  to 
which  is  vested  in  him,  is  deemed  to  be  the  contract  price.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 


Ch.  CXXVII.]       ON  PERSONAL  PROPERTY  CONTRACTS.  1729 

»  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  605S  North 
Dakota,  Rev.  Codes  1905,  §  6572.  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §2739;  Comp.  Laws  1909  (Snyder),  §2897.  South  Dakota,  Rev. 
Codes  1903,  C.  C.  §  2302. 

•  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 

Breach  of  buyer's  agreement  in  conditional  sale. 
California,  §  3311.     The  detriment  caused  by  the  breach  of  a  buy- 
er's agreement  to  accept  and  pay  for  personal  property,  the  title  to 
which  is  not  vested  in  him,  is  deemed  to  be: 

1.  If  the  property  has  been  resold,  pursuant  to  section  three  thou- 
sand and  forty-nine,  the  excess,  if  <.<ny,  of  the  amount  due  from  the 
buyer,  under  the  contract,  over  the  net  proceeds  of  the  resale;  or, 

2.  If  the  property  has  not  been  resold  in  the  manner  prescribed 
6y  section  three  thousand  and  forty-nine,  the  excess,  if  any,  of  the 
amount  due  from  the  buyer,  under  the  contract,  over  the  value  to  the 
seller,  together  with  the  excess,  if  any,  of  the  expenses  properly  in- 
curred in  carrying  the  property  to  market,  over  those  which  would 
have  been  incurred  for  the  carriage  thereof,  if  the  buyer  had  ac- 
cepted it.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
oote  succeeding  and  the  difference  there  shown: 

•  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6059.  North 
Oakota,  Rev.  Codes  1905,  §  6573.  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §2740;  Comp.  Laws  1909  (Snyder),  §2898.  South  Dakota,  Rev. 
Codes  1903.  C.  C.  §  2303. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 

Breach  of  warranty  of  title  to  personal  property. 
California,  §  3312.  The  detriment  caused  by  the  breach  of  a  war- 
ranty of  the  title  of  personal  property  sold,  is  deemed  to  be  the  value 
thereof  to  the  buyer,  when  he  is  deprived  of  its  possession,  together 
with  any  costs  which  he  has  become  liable  to  pay  in  an  action 
brought  for  the  property  by  the  true  owner.  (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6060.  North 
Dakota,  Rev.  Codes  1905,  §  6574.  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wil- 
son), §  2741.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2304. 

•  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  f  3300,  page  1722. 


1730  DAMAGES.  [Tit.  XVI. 

Breach  of  warranty  of  quality  of  personal  property. 
California,  §  3313.  The  detriment  caused  by  the  breach  of  a  war- 
ranty of  the  quality  of  personal  property  is  deemed  to  be  the  excess,, 
if  any,  of  the  value  which  the  property  would  have  had  at  the  time 
to  which  the  warranty  referred,  if  it  had  been  complied  with,  over 
its  actual  value  at  that  time.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6061.  North 
Dakota,  Rev.  Codes  1905,  §  6575.  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §2742;  Comp.  Laws  1909  (Snyder),  §2900.  South  Dakota,  Rev. 
Codes  1903,  C.  C.  §  2305. 

•  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 

Breach  of  warranty  of  quality  for  special  purpose. 
California,  §  3314.  The  detriment  caused  by  the  breach  of  a  war- 
ranty of  the  fitness  of  an  article  of  personal  property  for  a  particular 
purpose,  is  deemed  to  be  that  which  is  defined  by  the  last  section,  to- 
gether with  a  fair  compensation  for  the  loss  incurred  by  an  effort  in 
good  faith  to  use  it  for  such  purpose.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

»  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6062.  North 
Dakota,  Rev.  Codes  1905,  §6676  [6576].  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2743;  Comp.  Laws  1909  (Snyder),  §2901.  South  Dakota, 
Rev.  Codes  1903,  C.  C.   §  2306. 

•  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 

§445.     DAMAGES  FOR  WRONGS. 

Breach  of  obligation  not  arising  from  contract. 
California,  §  3333.  For  the  breach  of  an  obligation  not  arising 
from  contract,  the  measure  of  damages,  except  where  otherwise  ex- 
pressly provided  by  this  code,  is  the  amount  which  will  compensate 
for  all  the  detriment  proximately  caused  thereby,  whether  it  could 
have  been  anticipated  or  not.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6068.  North 
Dakota,    Rev.    Codes    1905,    §  6582.      Oklahoma,    Rev.    and    Ann.    Stats.    1903 


Cb.CXXVII.]  DAMAGES  FOR  WRONGS.  1731 

(Wilson),   §2749;    Comp.  Laws  1909   (Snyder),  8  2907.     South    Dakota,  Rev. 
Codes  1903.  C.  C.  §  2312. 

a  Hawaii,  §  1745,  see  note  *  to  Cal.  Civ.  Code  §  3300,  page  1722. 


Detriment  caused  by  wrongful  occupation  of  real  property. 
California,  §  3334.  The  detriment  caused  by  the  wrongful  occupa- 
tion of  real  property,  in  cases  not  embraced  in  sections  thirty-three 
hundred  and  thirty-five,  thirty-three  hundred  and  forty-four,  and 
thirty-three  hundred  and  forty-five  of  this  code,  or  section  eleven 
hundred  and  seventy-four  of  the  Code  of  Civil  Procedure,  is  deemed 
to  be  the  value  of  the  use  of  the  property  for  the  time  of  such  occupa- 
tion, not  exceeding  five  years  next  preceding  the  commencement  of 
the  action  or  proceeding  to  enforce  the  right  to  damages,  and  the 
costs,  if  any,  of  recovering  the  possession.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and   the  difference  there  shown: 

•  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §§2747,  2748.  b  Iowa,  Ann.  Code 
1897,  §4198.  c  Minnesota,  Rev.  Laws  1905,  §4432.  a  Missouri,  Ann.  Stats. 
1906,  §  3065.  Montana,  Rev.  Codes  1907,  §  6069.  e  New  Mexico,  Comp.  Laws 
1897,  §3170  (§2685,  sub-sec.  257,  Laws  1907,  p.  285).  f  North  Dakota,  Rev. 
Codes  1905,  §6583.  g  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson),  §2750; 
Comp.  Laws  1909  (Snyder),  §2908.  h  South  Dakota,  Rev.  Codes  1903,  C.  C. 
§2313.  » Texas,  Civ.  Stats.  1897  (Sayles),  Art.  5273.  J  Washington,  Code 
1910  (Rem.  &  Bal.),  §§  796,  797. 

•l  Arkansas,     §2747.     If     the     plaintiff  c  Minnesota,  §4432.    Damages  for  with- 

prevail   in    the   action,    he   shall    recover,  holding  the  property  recovered  shall  not 

by  way  of  damages,  the  rent  and  profits  exceed  the   fair  value  of  the  use  of  the 

down  to  the  time  of  assessing  the  same,  property,    exclusive    of    the    use    of    im- 

except  where  the  plaintiff,- or  those  un-  provements  made  by  the  defendant,  for  a 

der    whom    he    claims    title,    may    have  period    not    exceeding    six    years;     and, 

entered,  in  any  land  office  of  the  United  when     permanent     improvements     have 

States    within    this    state,    the    improve-  been  made  by  a  defendant,  or  those  un- 

ment   of   the   defendant,    and   the   action  <jer  whom  he  claims,  holding  under  color 

is   brought   to  recover   the  possession   of  of   title   adversely   to   the    claims   of    the 

such    improvement,    in    which    case    the  plaintiff,  in  good  faith,  the  value  thereof 

plaintiff  shall  recover  no  damages.  sliall  be  allowed  as  a  set-off  against  the 

a2  Arkansas,  §  2748.     If  the  right  of  the  damages  of  the  plaintiff, 

plaintiff  to   the  possession  of  the  prem-  d  Missouri,  §  3065.     If  the  plaintiff  pre- 

ises  expires  after  the  commencement  of  vail  in  the  action,  he  shall  recover  dam- 

the  action,  and  before  the  trial,  the  ver-  ages   for   all   waste   and   injury,    and,    by 

diet  shall   be   returned  according   to   the  way  of  damages,    the   rents  and   profits, 

fact,     and    judgment    shall    be    entered  down  to  the  time  of  assessing  the  same, 

only  for  the  damages  and  costs.  or  to   the  time  of  the  expiration  of   the 

b  Iowa,  §  4198.     The  plaintiff  cannot  re-  plaintiff's  title,  under  the  following  lim- 

cover  for  the  use  and  occupation  of  the  itations:      First,    when    it    shall    not    be 

premises  for  more  than  five  years  prior  shown   on    the    trial   that   the   defendant 

to  the  commencement  of  the  action.  had    knowledge    of    the    plaintiff's    claim 


1732 


DAMAGES. 


[Tit.  XVI, 


prior  to  the  commencement  of  the  action, 
such  recovery  shall  be  only  from  the 
time  of  the  commencement  of  the  ac- 
tion; second,  when  it  shall  be  shown  on 
the  trial  that  the  defendant  had  knowl- 
edge of  the  plaintiff's  claim  prior  to  the 
commencement  of  the  action,  and  that 
such  knowledge  came  to  the  defendant 
within  five  years  next  preceding  the 
commencement  of  the  action,  such  re- 
covery shall  be  from  the  time  that  such 
knowledge  came  to  the  defendant;  third, 
when  it  shall  be  shown  on  the  trial  that 
knowledge  of  the  plaintiff's  claim  came 
to  the  defendant  more  than  five  years 
prior  to  the  commencement  of  the  ac- 
tion, such  recovery  shall  only  be  for  the 
term  of  five  years  next  preceding  the 
commencement  of  the  action. 

e  New  Mexico,  §  3170.  If  the  plaintiff 
prevail,  he  shall  recover  for  damages 
the  value  of  the  rents  and  profits  of  such 
premises  to  the  time  of  the  verdict  or 
the  expiration  of  the  plaintiff's  title,  un- 
der these  limitations: 

First.  If  the  defendant  had  knowledge 
of  the  plaintiff's  claim  or  title,  then  for 
the  whole  time  he  had  such  knowledge. 

Second.  If  he  had  no  such  knowledge, 
then  from  the  commencement  of  the  ac- 
tion. (Re-enacted  as  §  2685,  sub-sec. 
257,  Mch.  12,  1907,  Laws  1907,  pp.  269, 
285.) 

f  North  Dakota,  §  65S3,  substantially 
same  as  Cal.  <2iv.  Code  §  3334,  except  in 
line  3  from  the  end  change  "five"  to 
"six"  before  "years." 

g  Oklahoma,  §  2750,  substantially  same 
as  North  Dakota  §  6583. 


h  South  Dakota,  C.  C.  §  2313,  substan- 
tially same  as  North  Dakota  §  6583. 

i  Texas,  Art.  5273.  Where  it  is  alleged 
and  proved  that  one  of  the  parties  is  in 
possession  of  the  premises  the  court  or 
jury,  if  they  find  for  the  adverse  party, 
shall  assess  the  damages  for  the  use  and 
occupation  of  the  premises,  and  if  spe- 
cial injury  to  the  property  be  alleged  and 
proved,  the  damages  for  such  injury 
shall  also  be  assessed,  and  the  proper 
judgment  shall  be  entered  therefor,  on 
which  execution  may  issue,  but  dam- 
ages shall  not  be  assessed  under  th»s 
article  for  use  and  occupation,  or  for  in- 
juries done  over  two  years  prior  to  the 
commencement  of  the  suit. 

jx  Washington,  §  796.  The  plaintiff  shall 
only  be  entitled  to  recover  damages  for 
withholding  the  property  for  the  term  of 
six  years  next  preceding  the  commence- 
ment of  the  action,  and  for  any  period 
that  may  elapse  from  such  commence- 
ment to  the  time  of  giving  a  verdict 
therein,  exclusive  of  the  use  of  perma- 
nent improvements  made  by  the  defend- 
ant. 

j2  Washington,  §  797.  In  an  action  for 
the  recovery  of  real  property  upon  which 
permanent  improvements  have  been 
made  or  general  or  special  taxes  or  local 
assessments  have  been  paid  by  a  defend- 
ant, or  those  under  whom  he  claims, 
holding  in  good  faith  under  color  or  claim 
of  title  adversely  to  the  claim  of  plaint- 
iff, the  value  of  such  improvements  and 
the  amount  of  such  taxes  or  assessments 
with  interest  thereon  from  date  of  pay- 
ment must  be  allowed  as  a  counterclaim 
to  the  defendant. 


Measure  of  damages  for  wilfully  holding  over. 
California,  §  3335.  For  wilfully  holding  over  real  property,  by  a 
person  who  entered  upon  the  same,  as  guardian  or  trustee  for  an  in- 
fant, or  by  right  of  an  estate  terminable  with  any  life  or  lives,  after 
the  termination  of  the  trust  or  particular  estate,  without  the  consent 
of  the  party  immediately  entitled  after  such  termination,  the  meas- 
ure of  damages  is  the  value  of  the  profits  received  during  such  hold- 
ing over.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6070.     North  Dakota,  Rev.  Codes  1905,  §  6584. 
Oklahoma,  Rev.  and  Ann.   Stats.   1903    (Wilson),    §2751;    Comp.   Laws   1909 
(Snyder),  §2909.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §2314. 


Ch.  CXXVII.]  DAMAGES  FOR  WRONGS.  1733 

Detriment  caused  by  conversion  of  personal  property. 
California,  §  3336.     The  detriment  caused  by  the  wrongful  conver- 
sion of  personal  property  is  presumed  to  be : 

1.  The  value  of  the  property  at  the  time  of  the  conversion,  with 
the  interest  from  that  time,  or,  where  the  action  has  been  prosecuted 
with  reasonable  diligence,  the  highest  market  value  of  the  property 
at  any  time  between  the  conversion  and  the  verdict,  without  inter- 
est, at  the  option  of  the  injured  party ;  and 

2.  A  fair  compensation  for  the  time  and  money  properly  ex- 
pended in  pursuit  of  the  property.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6071.     North  Dakota,  Rev.  Codes  1905,  §  6585. 
Oklahoma,  Rev.  and  Ann.   Stats.   1903    (Wilson),    §2752;    Comp.  Laws   1909 
(Snyder),  §  2910.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2315. 

Presumption  as  to  wrongful  conversion. 

California,  §  3337.  The  presumption  declared  by  the  last  section 
cannot  be  repelled,  in  favor  of  one  whose  possession  was  wrongful 
from  the  beginning,  by  his  subsequent  application  of  the  property  to 
the  benefit  of  the  owner,  without  his  consent.  (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6072.     North  Dakota,  Rev.  Codes  1905,  §  6586. 
Oklahoma,  Rev.  and  Ann.  Stats.   1903    (Wilson),   §2753;    Comp.  Laws  1909 
(Snyder),  §  2911.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2316. 

Damages  in  conversion  to  party  having  lien. 
California,  §  3338.  One  having  a  mere  lien  on  personal  property, 
cannot  recover  greater  damages  for  its  conversion,  from  one  having 
a  right  thereto  superior  to  his,  after  his  lien  is  discharged,  than  the 
amount  secured  by  the  lien,  and  the  compensation  allowed  by  section 
thirty-three  hundred  and  thirty-six  for  loss  of  time  and  expenses. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6073.     North  Dakota,  Rev.  Codes  1905,  §  6587. 
Oklahoma,  Rev.  and  Ann.   Stats.  1903    (Wilson),   §2754;    Comp.  Laws  1909 
(Snyder),  §  2912.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2317. 
Jury's  PI.— 110. 


1734  DAMAGES.  [Tit.XVL 

Damages  for  seduction. 

California,  §  3339.  The  damages  for  seduction  rest  in  the  sound 
discretion  of  the  jury.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the- 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  §  1745.  Montana,  Rev.  Codes  1907,  §  6074.  North 
Dakota,  Rev.  Codes  1905,  §  6588.  Oklahoma,  Rev.  and  Ann.  Stats.  1903 
(Wilson),  §2755;  Comp.  Laws  1909  (Snyder),  §  2913.  South  Dakota,  Rev. 
Codes  1903,  C.  C.  §  2318. 

a  Hawaii,  §  1745,  see  note  a  to  Cal.  Civ.  Code  §  3300,  page  1722. 


Injuries  caused  by  dogs,  etc.,  to  other  animals. 

California,  §  3341.  The  owner,  possessor,  or  harborer  of  any  dog 
or  other  animal,  that  shall  kill,  worry,  or  wound  any  sheep,  angora 
goat,  or  cashmere  goat,  or  poultry,  shall  be  liable  to  the  owner  of  the 
same  for  the  damages  and  costs  of  suit,  to  be  recovered  in  any  court 
of  competent  jurisdiction : 

1.  In  the  prosecution  of  actions  under  the  provisions  of  this  chap- 
ter, it  shall  not  be  necessary  for  the  plaintiff  to  show  that  the  owner, 
possessor,  or  harborer  of  such  dog  or  other  animal,  had  knowledge  of 
the  fact  that  such  dog  or  other  animal  would  kill,  wound  or  worry 
sheep,  goats,  or  poultry. 

2.  Any  person  on  finding  any  dog  or  dogs,  or  other  animal,  not  on 
the  premises  of  the  owner  or  possessor  of  such  dog  or  dogs,  or  other 
animal,  worrying,  wounding,  or  killing  any  sheep,  angora  or  cash- 
mere goats,  may,  at  the  time  of  finding  such  dog  or  dogs,  or  other 
animal,  kill  the  same,  and  the  owner  or  owners  thereof  shall  sustain 
no  action  for  damages  against  any  person  so  killing  such  dog  or 
dogs,  or  other  animal.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §§7892-7896.  b  Colorado,  Rev. 
Stats.  1908,  §  6387.  c  Hawaii,  Rev.  Laws  1905,  §  439.  a  Idaho,  Rev.  Codes 
1909,  §1220.  e  lowa,  Ann.  Code  1897,  §2340.  f  Kansas,  Gen.  Stats.  1905 
(Dassler),  §§8114,  8115.  s  Minnesota,  Rev.  Laws  1905,  §§2786,  2788.  h  Mis- 
souri, Ann.  Stats.  1906,  §§  6975,  6976.  i  Nebraska,  Comp.  Stats.  Ann.  1909, 
§542;  Ann.  Stats.  (Cobbey),  §3217.  i  New  Mexico,  Laws  1901,  p.  198,  §2. 
k  North  Dakota,  Rev.  Codes  1905,  §§1957,  1958.  i  Oregon,  Ann.  Codes  and1 
Stats.  1902   (Bel.  &  Cot),  §§4198,  4199.     m  South   Dakota,  Rev.  Codes   1903, 


Ch.  CXXVIL] 


DAMAGES  FOR  WRONGS. 


1735 


Pol.  Code  §§2956,  2957.  n  Utah,  Comp.  Laws  1907,  §§70,  71.  °  Wisconsin, 
Stats.  1898  (San.  &  Ber.  Ann.),  §§1619-1622.  p  Wyoming,  Rev.  Stats.  1825, 
§  2014. 


ai  Arkansas,  §  7S92.  Any  person  or 
persons  owning-  or  having  in  possession 
or  under  control  any  dog,  shall  be  liable 
in  damages  to  the  owner  or  owners  of 
any  sheep  killed  or  injured  by  such  dog 
in  the  full  value  of  such  sheep  killed 
or  injured. 

a2  Arkansas,  §  7S93.  Any  person  or  per- 
sons engaged  in  sheep-raising  or  own- 
ing any  sheep,  who  shall  sustain  any 
loss  or  damage  to  his  or  their  sheep  by 
any  dog,  shall  have  a  right  of  action 
against  the  owner  or  owners,  possessor 
or  possessors,  controller  or  controllers 
of  such  dog  in  the  manner  hereinafter 
provided. 

a3  Arkansas,  §  7S94.  The  person  or  per- 
sons sustaining  loss  or  damage  as  men- 
tioned in  the  preceding  section,  and  de- 
siring remuneration  therefor,  may  go 
before  some  justice  of  the  peace  of  the 
county  wherein  the  loss  or  damage  oc- 
curred, and  make  oath  of  the  character 
of  the  loss  or  damage  sustained,  the 
value  of  the  same,  the  dog  or  dogs,  and 
the  owner,  possessor  or  controller  of 
the  same,  and  file  the  same  with  such 
justice,  who  shall  issue  a  summons 
stating  the  nature  of  the  plaintiff's 
claim,  the  amount  claimed  and  the  cost 
accrued,  which  shall  be  served  and  re- 
turned as  in  ordinary  actions. 

a4  Arkansas,  §  7895.  If  the  defendant 
shall  pay  to  the  officer  serving  the  sum- 
mons the  amount  of  damages  claimed, 
and  the  costs  indorsed,  and  a  further 
fee  to  the  officer  of  twenty-five  cents  for 
making  the  return,  said  summons  shall 
be  returned  satisfied,  end  no  further 
proceedings  had.  If  the  defendant  fail, 
neglect  or  refuse  to  pay  the  same,  the 
justice  shall  try  the  cause  as  in  other 
ordinary  actions,  and  give  judgment  in 
favor  of  plaintiff  for  the  amount  of 
damage  proven  in  the  cause,  which  the 
defendant  or  defendants  may  be  liable 
by  the  provisions  of  this  act. 

as  Arkansas,  §  7896.  In  a  second  suit 
and  recovery  by  any  plaintiff  against 
the  same  defendant,  on  account  of  kill- 
ing or  injury  done  by  the  same  dog,  the 
justice  shall  render  judgment  for  double 
the  amount  of  damages  proven. 

b  Colorado,  §  6387.  Any  dogs  found 
running,    worrying   or   injuring   sheep   or 


cattle,  may  be  killed,  and  the  owner  or 
harborer  of  such  dog  shall  be  liable  for 
all  damages  done   by   it. 

c  Hawaii,  §  439.  If  any  dog  shall  injure 
or  destroy  any  sheep  or  cattle,  goats, 
hogs,  fowls,  or  other  property  belonging 
to  any  person  other  than  the  owner  of 
such  dog,  the  owner  shall  be  liable  in 
damages  to  the  person  injured,  for  the 
value  of  the  property  so  injured  or  de- 
stroyed; and  it  shall  be  the  duty  of  the 
owner  to  confine  or  destroy  such  dog, 
and  if  he  neglect  or  refuse  to  do  so,  he 
shall,  in  the  event  of  any  further  dam- 
age being  done  to  the  person  or  prop- 
erty of  any  person  by  such  dog,  in  addi- 
tion to  paying  the  person  injured  for 
such  damage,  pay  the  costs  of  the  trial, 
together  with  a  fine  of  ten  dollars,  or  in 
default  of  the  payment  of  such  fine,  be 
imprisoned  at  hard  labor  for  the  term  of 
thirty  days,  and  it  shall  be  lawful  for 
any  o'ther  person  to  destroy  said  dog. 

d  Idaho,  §  1220,  substantially  same  as 
Cal.  Civ.  Code  §  3341,  except  in  line  3  of 
the  opening  and  at  the  end  of  sub.  1, 
omit  "or  poultry";  also  in  sub.  2,  in  lines 
1  and  5,  omit  "or  other  animal"  after 
"dogs." 

e  Iowa,  §  2340.  It  shall  be  lawful  for 
any  person  to  kill  any  dog  caught  in  the 
act  of  worrying,  maiming  or  killing  any 
sheep  or  lamb,  or  other  domestic  animal, 
or  any  dog  attacking  or  attempting  to 
bite  any  person,  and  the  owner  shall  be 
liable  to  the  party  injured  for  all  dam- 
ages done,  except  when  the  party  is  do- 
ing an  unlawful  act.  The  provisions  of 
this  section  shall  not  apply  to  any  dam- 
age done  by  a  dog  affected  with  hydro- 
phobia. (Amended  April  13,  1904,  Sup. 
1907.) 

fi  Kansas,  §  8114.  If  any  dog  shall  kill 
or  injure  any  sheep,  the  owner  or  keeper 
of  such  dog  shall  be  liable  for  all  dam- 
ages that  may  be  sustained  thereby,  to 
be  recovered  by  the  party  so  injured  be- 
fore any  court  having  competent  juris- 
diction. 

a  Kansas,  §  8115.  It  shall  be  lawful  f  >r 
any  person  at  any  time  to  kill  any  dog 
which  may  be  found  worrying  or  injur- 
ing sheep. 

gi  Minnesota,  §  27S6.  The  owner  or 
keeper  of  any  dog  that  shall  kill,  wound. 


1736 


DAMAGES. 


[Tit.  XVI. 


or  worry  any  domestic  animal  shall  be 
liable  to  the  owner  thereof  for  the  value 
of  such  animal,  without  proving  notice 
to  such  owner  or  keeper,  or  knowledge 
by  him,  that  such  dog  was  mischievous 
or  disposed  to  kill  or  worry  such  animals. 

g2  Minnesota,  §  27S8.  Any  person  may 
kill  any  dog  found  injuring  or  worrying 
sheep,  and  any  owner  of  sheep  may  kill 
any  dog  found  on  his  premises  where 
sheep  are  kept,  not  under  the  restraint 
or  control  of  his  owner  or  other  person. 

hi  Missouri,  §  6975.  In  every  case  where 
sheep  or  other  domestic  animals  are 
killed  or  maimed  by  dogs,  the  owner  of 
such  animals  may  recover  against  the 
owner  or  keeper  of  such  dog  or  dogs  the 
full  amount  of  damages,  and  the  owner 
shall  forthwith  kill  such  dog  or  dogs; 
and  for  every  day  he  shall  refuse  or  neg- 
lect to  do  so,  after  notice,  he  shall  pay 
and  forfeit  the  sum  of  one  dollar,  and  it 
shall  be  lawful  for  any  person  to  kill 
such  dog  or  dogs. 

h2  Missouri,  §  6976.  If  any  person  shall 
discover  any  dog  or  dogs  in  the  act  of 
killing,  wounding  or  chasing  sheep  ih  any 
portion  of  this  state,  or  shall  discover 
any  dog  or  dogs  under  such  circum- 
stances as  to  satisfactorily  show  that 
such  dog  or  dogs  has  or  have  been  re- 
cently engaged  in  killing  or  chasing 
sheep  or  other  domestic  animal  or  ani- 
mals, such  person  is  authorized  to  im- 
mediately pursue  and  kill  such  dog  or 
dogs:  Provided,  however,  that  such  dog 
or  dogs  shall  not  be  killed  in  any  enclos- 
ure belonging  to  or  being  in  lawful  pos- 
session of  the  owner  of  such  dog  or  dogs. 

I  Nebraska,  §  542.  That  dogs  are  hereby 
declared  to  be  personal  property  for  all 
intents  and  purposes  and  the  owner  or 
owners  of  any  dog  or  dogs  shall  be  liable 
for  any  and  all  damages  that  may  accrue 
to  any  person,  firm  or  corporation  by 
reason  of  such  dog  or  dogs  killing, 
wounding,  worrying,  or  chasing  any 
sheep  or  other  domestic  animal  belonging 
to  such  other  person,  firm  or  corporation 
and  such  damage  [may]  be  recovered 
from  [in]  any  court  having  jurisdiction 
of  the  amount  claimed. 

J  New  Mexico,  Laws  1901,  p.  198,  §  2. 
If  any  dog  shall  kill  or  injure  any  sheep, 
the  owner  or  keeper  of  such  dog  shall 
be  liable  for  all  damages  that  may  be 
sustained  thereby,  to  be  recovered  by 
the  party  so  injured  before  any  court 
having    competent    jurisdiction,    and    It 


shall  be  unlawful  to  keep  such  dog  after 
it  is  kno  ivn  that  the  dog  is  liable  to  kill 
sheep,  but  it  shall  be  the  duty  of  the 
owner  to  kill  the  same.  (Enacted  March 
21,  1901.) 

ki  North  Dakota,  §  1957.  If  any  person 
shall  discover  any  dog  in  the  act  of  kill- 
ing, wounding,  or  chasing  sheep  in  this 
state,  or  shall  discover  any  dog  under 
such  circumstances  as  satisfactorily  to 
show  that  it  has  been  recently  engaged 
in  killing  or  chasing  sheep,  such  person 
is  authorized  immediately  to  pursue  and 
kill  such  dog. 

k2  North  Dakota,  §  1958.  The  owner  of 
any  dog  shall  be  liable  in  a  civil  action 
for  all  damages  that  may  accrue  to  any 
person  by  reason  of  such  dog's  killing, 
wounding  or  chasing  any  sheep  or  other 
domestic  animal  belonging  to  such  per- 
son. 

li  Oregon,  §  4198.  The  owner  of  any 
dog  shall  be  liable  for  all  damages  that 
may  accrue  to  any  person  or  persons  in 
this  state  by  reason  of  such  dog  killing, 
wounding,  or  chasing  any  sheep  or  other 
domestic  animal  belonging  to  such  other 
person  or  persons,  the  same  to  be'  recov- 
ered in  an  action  for  debt  before  any 
court  having  jurisdiction. 

12  Oregon,  §  4199.  If  any  person  shall 
discover  any  dog  in  the  act  of  killing, 
wounding,  or  chasing  any  sheep  or  other 
domestic  animals  in  any  portion  of  this 
state,  or  shall  discover  any  dog  under 
such  circumstances  as  to  satisfactorily 
show  that  such  dog  has  been  recently  en- 
gaged in  killing  or  chasing  sheep  or 
other  domestic  animals  for  the  purpose 
of  killing  them,  such  person  is  authorized 
to  immediately  pursue  and  kill  such  dog. 

mi  South  Dakota,  Pol.  C.  §  2956.  Aay 
person  keeping,  owning  or  harboring  a 
dog  that  shall  chase,  worry  or  kill  horses, 
mules,  cattle  or  sheep,  shall  be  liable  for 
all  damages  committed  by  such  dog  upon 
any  horses,  mules,  cattle  or  sheep,  to  the 
owner  or  owners  of  such  horses,  mules, 
cattle  or  sheep,  and  shall  not  be  entitled 
to  any  benefit  from  the  laws  exempting 
property  from  execution,  but  all  property 
shall  be  subject  to  execution  and  judg- 
ment for  such  damages  and  costs. 

m2  South  Dakota,  Pol.  C.  §  2957.  It 
shall  be  lawful  for  any  person  to  kill  any 
dog  off  the  premises  of  the  owner  of  such 
dog  found  chasing  or  worrying  sheep. 

ni  Utah,  §  70.  Every  person  owning  or 
keeping  a  dog  shall  be  liable  in  damages 


Ch.  CXXVII.] 


PENAL  DAMAGES. 


1737 


for  any  injurious  act  committed  by  such 
dog;  and  it  shall  not  be  necessary  in  any 
action  brought  therefor  to  allege  or  prove 
that  such  dog  was  of  a  vicious  or  mis- 
chievous disposition,  or  that  the  owner 
or  keeper  thereof  knew  that  it  was 
vicious  or  mischievous. 

n2  Utah,  §  71.  Where  any  injury  has 
been  committed  by  two  or  more  dogs 
acting  together,  and  such  dogs  are  owned 
or  kept  by  different  persons,  all  such 
persons  may  be  joined  as  defendants  in 
the  same  action  to  recover  damages 
therefor,  and  the  amount  found  by  the 
court  or  jury  for  such  injury  shall  be 
apportioned  among  the  several  defend- 
ants found  liable,  and  judgment  entered 
severally  against  them  for  the  amount 
so  apportioned. 

oi  Wisconsin,  §  1619.  Any  person  may 
kill  any  dog,  that  he  knows  is  affected 
with  the  disease  known  as  hydrophobia, 
or  that  may  suddenly  assault  him  while 
he  is  peacefully  walking  or  riding  and 
while  being  out  of  the  enclosure  or  im- 
mediate care  of  its  owner  or  keeper,  and 
may  kill  any  dog  before  its  return  to  the 
enclosure  or  immediate  care  of  its  owner 
or  keeper  which  shall  be  found  killing, 
wounding  or  worrying  any  horses,  cattle, 
sheep,  lambs  or  other  domestic  animals. 
(Amended  1903,  Sup.  3,  p.  722.) 

02  Wisconsin,  §  1620.  The  owner  or 
keeper  of  any  dog  which  shall  have  in- 
jured or  caused  the  injury  of  any  person 
or  property  or  killed,  wounded  or  wor- 
ried any  horses,  cattle,  sheep  or  lambs 
shall  be  liable  to  the  person  so  injured 
and  the  owner  of  such  animals  for  all 
damages  so  done,  without  proving  notice 
to  the  owner  or  keeper  of  such  dog  or 
knowledge  by  him  that  his  dog  was  mis- 


chievous  or   disposed    to   kill,    wound    or 
worry  horses,  cattle,  sheep  or  lambs. 

o3  Wisconsin,  §  1621.  If  any  dog  shall 
w«rry,  wound  or  kill  any  horses,  cattle, 
eheep  or  lambs,  and  the  person  owning 
or  harboring  such  dog  shall  not  keep 
such  dog  confined  after  being  notified  of 
such  worrying,  wounding  or  killing,  such 
owner  or  keeper  shall  be  liable  to  pay 
damage  in  double  the  value  of  any 
horses,  cattle,  sheep  or  lambs  which  may 
be  thereafter  killed  or  injured  by  such 
dog,  to  be  recovered  in  an  action  by  the 
owner  of  such  animals;  and  any  person 
may  kill  any  such  dog  if  found  out  of  the 
enclosure  or  immediate  care  of  its  owner 
or  keeper  after  the  twenty-four  hours 
from  the  time  of  such  notice. 

o4  Wisconsin,  §  1622.  Any  person  suf- 
fering personal  injury  by  any  dog  in  the 
manner  set  forth  in  the  first  section  of 
this  chapter  may  give  notice  to  the 
owner  or  keeper  of  the  act  done,  and  if 
after  such  notice  such  dog  shall  injure 
any  person,  or  wound  or  kill  any  horses, 
cattle,  sheep  or  lambs,  or  do  any  other 
mischief  or  injury  the  owner  or  keeper 
shall  be  liable  to  pay  to  the  person  in° 
jured  thereby  treble  damages. 

p  Wyoming,  §  2014.  Dogs  running  live- 
stock against  the  wish  of  the  owner  of 
such  livestock,  may  be  killed  in  cases 
where  the  livestock  has  been  injured  or 
is  threatened  with  injury  thereby;  and! 
the  person  killing  any  such  dog  shall  not 
be  liable  to  the  owner  thereof  where  th« 
vicious  chracter  of  the  dog,  or  the  dam- 
age or  danger  of  damage,  is  shown;  pro- 
vided, however,  that  when  livestock  Irj 
trespassing  upon  property,  the  owner 
thereof  may  use  dogs  to  drive  and  keep 
off  livestock  from  said  property. 


§446.     PENAL  DAMAGES. 

Exemplary  or  punitive  damages. 
California,  §  3294.  In  an  action  for  the  breach  of  an  obligation  not 
arising  from  contract,  where  the  defendant  has  been  guilty  of  oppres- 
sion, fraud,  or  malice,  express  or  implied,  the  plaintiff,  in  addition 
to  the  actual  damages,  may  recover  damages  for  the  sake  of  exam- 
ple and  by  way  of  punishing  the  defendant.  (Kerr's  Cyc.  Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  th# 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 


1738 


DAMAGES.  [Tit.  XVI. 


•  Colorado,  Rev.  Stats.  1908,  §2067.  b  Montana,  Rev.  Codes  1907,  §6047. 
«  North  Dakota,  Rev.  Codes  1905,  §6562.  a  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2729;  Comp.  Laws  1909  (Snyder),  §2887.  e  South  Dakota, 
Rev.  Codes  1903,  C.  C.  §  2292. 

a  Colorado,     §  2067.     That    in    all    civil  b  Montana,    §  6047,    substantially    same 

actions   in   which   damages   shall   be   as-  as  Cal.  Civ.  Code  §  3294,  except  in  line  3 

sessed  by  a  jury  for  a  wrong  done  to  the  after   "malice"    change    "express   or   im- 

person,   or   to  personal  or  real  property,  plied,    the  plaintiff,"    to   "actual   or  pre- 

and  the  injury  complained  of  shall  have  sumed,    the   jury";    also    in    line    4    after 

been  attended  by  circumstances  of  fraud,  "may"  change  "recover"  to  "give." 

malice  or  insult,  or  a  wanton  and  reck-  c  North     Dakota,     §  6562,    substantially 

less    disregard    of    the    injured    party's  same  as  Montana  §  6047. 

rights    and    feelings,    such   jury    may,    in  d  Oklahoma,    §  2729,    same   as   Montana 

addition    to    the    actual    damages    sus-  §  6047. 

tained  by  such  party,  award  him  reason-  e  South    Dakota,  C.   C.   §  2292,   same  as 

able  exemplary  damages.  Montana  §  6047. 

Damages  for  wilful  or  negligent  injuries  to  animals. 
California,  §  3340.     For  wrongful  injuries  to  animals  being  sub- 
jects of  property,  committed  wilfully  or  by  gross  negligence,  in  disre- 
gard of  humanity,  exemplary  damages  may  be  given.     (Kerr's  Cyc. 
Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6075.     North  Dakota,  Rev.  Codes  1905,  §  6589. 
Oklahoma,  Rev.   and  Ann.   Stats.  1903    (Wilson),    §2756;    Comp.   Laws   1909 
(Snyder),  §2914.     South  Dakota,  Rev.  Codes  1903,  C.  C.  §2319. 

Damages  for  failure  to  quit  after  notice. 
California,  §  3344.  If  any  tenant  give  notice  of  his  intention  to 
quit  the  premises,  and  does  not  deliver  up  the  possession  at  the  time 
specified  in  the  notice,  he  must  pay  to  the  landlord  treble  rent  during 
the  time  he  continues  in  possession  after  such  notice.  (Kerr's  Cyc. 
Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §4694.  b  Iowa,  Ann.  Code  1897, 
§  2989.  o  Missouri,  Ann.  Stats.  1906,  §  4104.  Montana,  Rev.  Codes  1907,  §  6076, 
d  North  Dakota,  Rev.  Codes  1905,  §6590.  e  Oklahoma,  Rev.  and  Ann.  Stats. 
1903  (Wilson),  §2757;  Comp.  Laws  1909  (Snyder),  §2915.  f South  Dakota, 
Rev.  Codes  1903,  C.  C.  §2320.  e  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.), 
§  2185. 

a  Arkansas,  §  4694.     If  any  tenant  shall  not    deliver    up    the    possession    thereof 

give   notice   in    writing   of   his    intention  at  such   time,   such  tenant,  his  executor 

to   quit  the  premises   held  by  him   at  a  or   administrator,    shall    from    thencefor- 

time  specified   in   such   notice,   and  shall  ward   pay   to    the   landlord,    his   heirs   or 


Ch.  CXXVII.] 


PENAL  DAMAGES. 


1739 


assigns,  double  the  rent  reserved  dur- 
ing all  the  time  such  tenant  shall  so 
continue  in  possession  of  such  premises. 

b  Iowa,  §  29S9.  A  tenant  giving  notice 
of  his  intention  to  quit  leased  premises 
at  a  time  named,  and  afterwards  hold- 
ing over,  and  a  tenant  or  his  assignee 
wilfully  holding  over  after  the  term,  and 
after  notice  to  quit,  shall  pay  double 
the  rental  value  thereof  during  the  time 
he  holds  over  to  the  person  entitled 
thereto. 

c  Missouri,  §  4104,  substantially  same  as 
Arkansas  §  4694. 


d  North  Dakota,  §  6590.  For  the  failure 
of  a  tenant  to  give  up  the  premises  held 
by  him,  when  he  has  given  notice  of  his 
intention  to  do  so,  the  measure  of  dam- 
ages is  double  the  rent  which  he  ought 
otherwise  to  pay. 

e  Oklahoma,  §  2757,  same  as  North  Da- 
kota §  6590. 

f  South  Dakota,  C.  C.  §  2320,  same  as 
North  Dakota  §  6590. 

g  Wisconsin,  §  21S5,  substantially  same 
as  Arkansas  §  4694. 


Damages  for  wilfully  holding  over  after  demand  and  notice. 
California,  §  3345.  If  any  tenant,  or  any  person  in  collusion  with 
the  tenant,  holds  over  any  lands  or  tenements  after  demand  made 
and  one  month's  notice,  in  writing  given,  requiring  the  possession 
thereof,  such  person  holding  over  must  pay  to  the  landlord  treble 
rent  during  the  time  he  continues  in  possession  after  such  notice. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

•  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §4696.  b  |0wa,  Ann.  Code  1897, 
§2989.  o  Missouri,  Ann.  Stats.  1906,  §4106.  Montana,  Rev.  Codes  1907, 
§  6077.  *  North  Dakota,  Rev.  Codes  1905,  §  6591.  e  Oklahoma,  Rev.  and  Ann. 
Stats.  1903  (Wilson),  §2758;  Comp.  Laws  1909  (Snyder),  §2916.  t  South 
Dakota,  Rev.  Codes  1903,  C.  C.  §2321.  g  Wisconsin,  Stats.  1898  (San.  &  Ber. 
Ann.),  §  2186. 


a  Arkansas,  §  4696.  If  any  tenant  for 
life  or  years,  or  if  any  other  person  who 
may  have  come  into  possession  of  any 
lands  and  tenements,  under  or  by  col- 
lusion with  such  tenant,  shall  wilfully 
hold  over  the  same  after  the  termina- 
tion of  such  term,  and  thirty  days'  pre- 
vious notice  in  writing  given  requiring 
the  possession  thereof  by  the  person  en- 
titled thereto,  such  person  so  holding 
over  shall  pay  to  the  person  so  kept 
out  of  possession  double  the  yearly  rents 
of  the  lands  or  tenements  so  detained 
for  all  time  he  shall  keep  the  person 
entitled   thereto   out   of   possession. 

b  Iowa,  §  29S9,  see  note  b  to  Cal.  Civ. 
Code  §  3344. 

c  Missouri,  §  4106,  substantially  same  as 
Arkansas  §  4696,  except  in  line  7  after 
"term,  and"  change  "thirty  days'  pre- 
vious" to  "after  demand  made  and"  be- 


fore "notice  in  writing";  also  in  line  4 
from  the  end  after  "yearly"  change 
"rents"  to  "value." 

d  North  Dakota,  §  6591.  For  wilfully 
holding  over  real  property  by  a  tenant 
after  the  end  of  his  term  and  after  no- 
tice to  quit  has  been  duly  given  and  de- 
mand of  possession  made  the  measure  of 
damages  is  double  the  yearly  value  of 
the  property  for  the  time  of  withholding 
in  addition  to  compensation  for  the  det- 
riment occasioned  thereby. 

e  Oklahoma,  §  2758,  same  as  North  Da- 
kota §  6591. 

f  South  Dakota,  C.  C.  §  2321,  same  as 
North  Dakota  §  6591. 

g  Wisconsin,  §  2186,  substantially  same 
as  Arkansas  §  4969,  except  in  line  4 
after  "such"  change  "term,  and  thirty 
days'  previous"  to  "time  and  after  de- 
mand   made    and    one    month's"    before 


1740 


DAMAGE3.  [Tit.  XVI. 


"notice";    also   in  line   4   from   the   last,  "yearly";  also  at  the  end  add  "and  shall 

after  "possession,"  insert  "or  his  repre-  also  pay  and  remunerate  all  special  dam- 

sentatives      at     the     rate     of"      before  age   whatever    to    which    the    person   so 

"double";   also   in  line   4   from   the   last  kept  out  of  possession  may  be  subjected 

change       "rents"       to       "value"       after  by  reason  of  such  holding  over." 

Measure  of  damages  for  injuries  to  trees,  etc. 
California,  §  3346.  For  wrongful  injuries  to  timber,  trees,  or  un- 
derwood upon  the  land  of  another,  or  removal  thereof,  the  measure 
of  damages  is  three  times  such  a  sum  as  would  compensate  for  the 
actual  detriment,  except  where  the  trespass  was  casual  and  involun- 
tary, or  committed  under  the  belief  that  the  land  belonged  to  the 
trespasser,  or  where  the  wood  was  taken  by  the  authority  of  highway 
officers  for  the  purposes  of  a  highway ;  in  which  cases  the  damages 
are  a  sum  equal  to  the  actual  detriment.     (Kerr's  Cyc.  Civ.  Code.) 

Damages  for  firing  woods. 
California,  §  3346a.     Every  person  negligently  setting  fire  to  his 
own  woods,  or  negligently  suffering  any  fire  to  extend  beyond  his 
own  land,  is  liable  in  treble  damages  to  the  party  injured.     (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  mad*  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

•  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §1698.  b  Colorado,  Rev.  Stats. 
1908,  §2070.  o  Kansas,  Gen.  Stats.  1905  (Dassler),  §8742.  a  Missouri,  Ann. 
Stats.  1906,  §  2872.  e  New  Mexico,  Comp.  Laws  1897,  §  3222.  t  North  Dakota, 
Rev.  Codes  1905,  §2067.  e  Oklahoma,  Rev.  and  Ann.  Stats.  1903  (Wilson), 
§2361;  Comp.  Laws  1909  (Snyder),  §2484.  »  South  Dakota,  Rev.  Codes  1903, 
Pen.  Code  §473.  i  Washington,  Code  1910  (Rem.  &  Bal.),  §5141.  i  Wiscon- 
sin, Stats.  1898  (San.  &  Ber.  Ann.),  §4406. 

a  Arkansas,  §  1698.     If  any  person  shall  ries  so  as  thereby  to  occasion  damage  to 

wilfully  set  on  fire  any  woods,   marshes  any   other  person,   he   shall   be   liable   to 

or  prairies,  whether  his  own  or  not,   so  the  party  injured  for  the  full  amount  of 

as    thereby   to   occasion   any   damage   to  such   damage,    to    be   recovered    by   civil 

any    other    person,     such     person     shall  action. 

make  satisfaction  in  double  damages  to  d  Missouri,    §  2872,    same    as    Arkansas 

the   party    injured,    to   be    recovered    by  |  1698. 

civil  action.  e  New      Mexico,      §  3222,     substantially 

b  Colorado,  §  2070.     If  any  person  shall  same  as  Arkansas  §  1698,   except  in  line 

set  on  fire  any  woods  or  prairie,  so  as  to  2    after    "shall"    omit    "wilfully"    before 

damage   any   other   person,    such   person  "set  on  fire." 

shall   make   satisfaction  for  the  damage  t  North    Dakota,   §  2067.     If  any  person 

to  the  party  injured,  to  be  recovered  in  shall    wilfully,    negligently    or    carelessly 

an  action  before  any  court  of  competent  set  or  cause  to  be  set  on  fire  any  woods, 

jurisdiction.  marsh  or  prairie  in  this  state,  or  if  any 

c  Kansas,    §  8742.    If  any  person   shall  person  having  made  any  camp  or  other 

set  on  fire  any  woods,  marshes  or  prai-  fire,  shall  leave  such  fire  without  having 


Ch.  CXXVIL] 


penal  damages. 


1741 


thoroughly  extinguished  the  same,  so 
that  the  fire  shall  spread  and  burn  any 
wood,  marsh  or  prairie,  the  person  guilty 
of  setting  or  causing  to  set  such  fire  or 
leaving  such  camp  or  other  fire  without 
having  thoroughly  extinguished  the  same, 
so  that  the  fire  shall  not  spread  there- 
from, Is  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  is  punishable  by 
a  fine  not  exceeding  two  hundred  dollars 
or  by  imprisonment  in  the  county  jail 
not  exceeding  one  year,  or  by  both  in  the 
discretion  of  the  court,  and  shall  also  be 
liable  in  a  civil  action  to  any  person 
damaged  by  such  fire  to  the  amount  of 
such  damage. 

g  Oklahoma,  §  2361.  Every  person  who 
negligently  or  carelessly  sets  on  fire,  or 
causes  to  be  set  on  fire,  any  woods, 
marshes,  or  prairies,  or  who,  having  set 
the  same  on  fire,  or  caused  it  to  be  done, 
negligently  or  carelessly,  or  without  full 
precaution  or  efforts  to  prevent,  permits 
it  to  spread  beyond  his  control,  shall, 
upon  conviction,  be  fined  not  exceeding 
one  hundred  dollars  and  not  less  than 
ten  dollars,  and  shall  be  liable  to  the  in- 
jured parties  for  all  damages  occasioned 


thereby.     One-half    of    such    fine    shall, 
when  collected,  go  to  the  informer. 

h  South  Dakota,  Pen.  Code  §  473,  same 
as  Oklahoma  §  2361. 

1  Washington,  §  5141.  If  any  person 
shall  for  any  lawful  purpose  kindle  a  fire 
upon  his  own  land,  he  shall  do  it  at  such 
time  and  in  such  manner,  and  shall  take 
such  care  of  it  to  prevent  it  from  spread- 
ing and  doing  damage  to  other  persons' 
property,  as  a  prudent  and  careful  man 
would  do,  and  if  he  fail  so  to  do  he  shall 
be  liable  in  an  action  to  any  person  suf- 
fering damage  thereby  to  the  full  amount 
of  such  damage. 

1  Wisconsin,  §4406.  *  *  •  Any  per- 
son who  shall  wilfully  or  negligently 
set  fire  to  or  assist  another  to  set  fire 
on  any  land,  whereby  such  land  is  in- 
jured or  endangered,  or  shall  wilfully  or 
negligently  suffer  any  fire  upon  his  own 
land  to  escape  beyond  the  limits  thereof, 
to  the  injury  of  the  land  of  another, 
shall  be  punished  as  hereinbefore  pro- 
vided and  be  liable  to  the  person  injured 
for  all  damage  that  may  be  caused  by 
the  fire. 


Damages  for  detriment  caused  by  a  duel . 

California,  §  3347.  If  any  person  slays  or  permanently  disables 
another  person  in  a  duel  in  this  state,  the  slayer  must  provide  for  the 
maintenance  of  the  widow  or  wife  of  the  person  slain  or  permanently 
disabled,  and  for  the  minor  children,  in  such  manner  and  at  such 
cost,  either  by  aggregate  compensation  in  damages  to  each,  or  by  a 
monthly,  quarterly,  or  annual  allowance,  to  be  determined  by  the 
court.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

Montana,  Rev.  Codes  1907,  §  6079.  a  Washington,  Code  1910  (Rem.  &  Bal.), 
§183. 


a  Washington,  8  183.  The  widow,  or 
widow  and  her  children,  or  child  or 
children  if  no  widow,  of  a  man  killed  in 
a  duel,  shall  have  a  right  of  action 
against    the    persons    killing    him,    and 


against  the  seconds  and  all  aiders  and 
abettors.  *  *  *  In  every  such  action 
the  jury  may  give  such  damages,  as 
under  all  circumstances  of  the  case  may 
to  them  seem  Just. 


1742  DAMAGES.  [Tit.  XVI. 

Liability  to  pay  debts  of  person  slain  or  permanently  disabled  in  duel. 

California,  §  3348.  If  any  person  slays  or  permanently  disables 
another  person  in  a  duel  in  this  state,  the  slayer  is  liable  for  and 
must  pay  all  debts  of  the  person  slain  or  permanently  disabled. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statute  treats  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6080. 


§447.     ANNOTATIONS.— Damages. 

1.  Redress  in  law  and  equity. — Distinctions. 

2.  "Proximate  cause"  defined. 

3,  4.  Future  earnings  as  element  of  damages. — Loss  of  time. 
5,  6.  Special  damages. 

7.  Speculative  damages. 

8.  Liquidated  damages. 

9.  Demand  for  damages   not  necessary. 

10.  Breach  of  contract  to  buy. — Measure  of  damages. 

11.  Pleading  damages. 

12.  Allowance  of  interest. 

13.  Personal  injuries  caused  by  known  defect. 

14.  Punitive  damages. 

15,  16.  Exemplary  damages. — For  malicious  ejection. 
17,  18.   "Wilful." — Meaning  construed. 

19.  Allegation  as  basis  for  exemplary  damages. 


1.  Redress  in  law  and  equity. — Dis- 
tinctions.—  Distinctions  between  kinds 
of  redress  given  by  law  and  equity  are 
not  sought  to  be  obliterated  by  the  Cali- 
fornia statute,  although  courts  of  law 
and  equity  are  merged  into  one,  and  a 
party  is  awarded  such  legal  or  equita- 
ble redress  as  the  simple  pleading  of 
ultimate  facts  shows  him  to  be  entitled 
to:  Glock  v.  Howard  &  W.  C.  Co.,  123 
Cal.  1,  6,  55  Pac.  713,  69  Am.  St.  Rep.  17, 
43  L.  R.   A.   199. 

2.  "Proximate  cause"  defined. — "Prox- 
imate cause"  means  that  efficient  cause 
which  necessarily  sets  other  causes  in 
operation.  Causes  which  are  merely  in- 
cidental or  instruments  of  some  other 
controlling  agency  are  not  proximate: 
Smith  v.  Los  Angeles  &  P.  R.  Co.,  98 
Cal.  210,  214,  33  Pac.  53;  Westwater  v. 
Grace  Church,  140  Cal.  339,  342,  73  Pac. 
1055.  See  Friend  &  T.  L.  Co.  v.  Miller, 
€7  Cal.  464,  467,  8  Pac.  40;  Cederberg  v. 
Robison,  100  Cal.  93,  97-99,  34  Pac.  625; 
Martin  v.  Deetz,  102  Cal.  55,  36  Pac.  368, 
41  Am.  St.  Rep.  151;  Shoemaker  v. 
Acker,  116  Cal.  239,  244,  48  Pac.  62; 
Crow  v.  San  Joaquin  etc.  C.  &  I.  Co., 
130  Cal.  309,   314,  62  Pac.  562,  1058. 


3.  Futvrc  earnings  as  element  of  dam* 
ages. — Under  an  averment  in  the  peti- 
tion, "that,  because  of  the  premanency 
of  her  said  injuries,  she  is  and  ever  will 
be  incapacitated  from  earning  her  live- 
lihood at  her  chosen  and  established 
trade,  to  wit,  that  of  seamstress  and 
dressmaker";  held,  that  the  defendant 
was  sufficiently  notified  by  this  aver- 
ment to  prepare  to  meet  the  issue  of 
earnings  lost  from  the  date  of  the  in- 
jury of  the  plaintiff  in  an  action  to  re- 
cover for  such  injuries:  Hitchings  v. 
City  of  Maryville,  134  Mo.  App.  712,  115 
S.  W.  473,  475,  citing  Wilbur  v.  Railway, 
110  Mo.  App.  689,  85  S.  W.  671. 

4.  An  averment  of  loss  of  time  in  an 
action  to  recover  for  injuries  caused  by 
the  reckless  driving  of  an  automobile, 
held  equivalent  to  an  averment  of  loss 
of  earnings:  Scholl  v.  Grayson  (Mo. 
App.),  127  S.  W.  415,  417.  See  Slaughter 
v.  Railroad,  116  Mo.  269,  275,  23  S.  W. 
760. 

5.  Special  damages  which  are  the  nat- 
ural, but  not  the  necessary,  result  of 
the  injury  complained  of  must  be 
specially  alleged:  O'Brien  v.  Quinn,  35 
Mont.    441,    90    Pac.    166,    168;    Root    v. 


Ch.  CXXVII.] 


ANNOTATIONS. 


174:; 


Butte  etc.  R.   Co.,   20  Mont.   354,   51  Pac. 
155. 

6.  Special  damages  are  those  which 
are  awarded  upon  the  theory  that  par- 
ties who  contracted  with  full  knowledge 
of  facts,  circumstances,  and  objects  of 
the  agreement  may  well  be  supposed  to 
have  had  in  contemplation  all  the  prox- 
imate and  natural  results  flowing  from 
its  breach:  Wallace  v.  Ah  Sam,  71  Cal. 
197,  201,  12  Pac.  46,  60  Am.  Rep.  534. 

7.  Speculative  damages  are  not  recov- 
erable. The  verdict  should  be  confined 
to  such  detriment  only  as  was  proxi- 
mately caused  by  the  wrongful  act: 
Hawthorne  v.  Siegel,  88  Cal.  159,  163- 
166,  25  Pac.  1114,  22  Am.  St.  Rep.  291. 

8.  Liquidated  damages  will  be  allowed 
in  accordance  with  the  stipulation  of  the 
parties  if  it  appears  that  the  sum  named 
was  not  intended  as  a  mere  forfeiture 
or  penalty,  even  if  the  agreement  seem 
to  have  been  made  improvidently: 
Streeter  v.  Rush,  25  Cal.  67,  71;  Muldoon 
v.  Lynch,  66  Cal.  536,  539,  540,  6  Pac.  417. 

9.  Demand  for  damages  is  not  neces- 
sary in  order  to  maintain  an  action  for 
damages  or  to  abate  a  nuisance:  Wil- 
hite  v.  Billings  &  E.  M.  P.  Co.,  39  Mont. 
1,  101  Pac.  16S,  169. 

10.  Breach  of  contract  to  buy. — Meas- 
ure of  damages.— Upon  a  breach  of  con- 
tract to  purchase  goods  by  the  buyer, 
the  general  rule  is  that  the  measure 
of  damages  is  the  excess  of  the  price 
fixed  by  the  contract  over  the  market 
value  of  the  goods  at  the  time  and 
place  of  the  delivery:  Kirchman  v.  Tuf- 
fll  Bros.  (Ark.),  122  S.  W.  239,  241,  and 
cases  there  cited. 

11.  Pleading  damages.  —  Where  the 
complaint  conforms  to  the  statute  in  re- 
gard to  the  estimate  and  measure  of 
damages  in  case  of  a  breach  of  con- 
tract, it  is  not  necessary  to  be  more 
definite  or  specific  in  alleging  items  of 
damage:  Kirchman  v.  Tuffli  Bros. 
(Ark.),  122  S.  W.  239,  241. 

12.  Allowance  of  interest. — In  a  suit 
for  breach  of  contract,  the  court  may  in 
a  proper  case  allow  the  plaintiff  inter- 
est upon  the  amount  of  damages  sus- 
tained from  the  date  of  filing  the  com- 
plaint: Cutting  F.  P.  Co.  v.  Canty,  141 
Cal.  692,  697,  75  Pac.  564. 

13.  Personal  injuries  caused  by  known 
defect. — Where  a  defective  article  was 
sold  under  the  representation  that  it  was 
safe  for  use,  but  the  vendor  knew  it  to 


be  dangerous,  he  is  liable  for  personal 
injuries  caused  by  reason  of  such  known 
defect  to  any  person  who  used  the  arti- 
cle, notwithstanding  the  fact  that  there 
was  no  privity  of  contract  between 
them:  Lewis  v.  Terry,  111  Cal.  39,  43 
Pac.  398.  52  Am.  St.  Rep.  146,  31  L.  R. 
A.  22C 

14.  Punitive  damages  are  not  assessa- 
ble as  a  matter  of  right:  Tilton  v.  James 
L.  Gates  L.  Co.,  140  Wis.  197,  121  N.  W. 
331,  336;  Robinson  v.  Superior  R.  T.  Co., 
94  Wis.  345,  68  N.  W.  961,  59  Am.  St. 
Rep.  897,  34  L.  R.  A.  205. 

15.  Exemplary  damages  can  be  recov- 
ered only  where  the  act  complained  of 
is  the  result  of  wilful  misconduct: 
Yerian  v.  Linkletter,  80  Cal.  135.  138,  22 
Pac.  70. 

16.  Exemplary  damages  for  malicious 
ejection. — A  railroad  company  is  not 
liable  in  exemplary  damages  for  any 
malicious  or  wanton  conduct  of  its 
conductor  In  wrongfully  ejecting  a 
passenger  from  a  train,  unless  the  act 
complained  of  was  done  with  the  author- 
ity, express  or  implied,  of  such  com- 
pany, or  was  subsequently  adopted  by 
it:  Warner  v.  Southern  Pacific  Co.,  113 
Cal.  105,  106,  45  Pac.  187,  54  Am.  St. 
Rep.  327. 

17.  "Wilful"  does  not  imply  malice  or 
wrong  towards  the  other  party,  but  is 
synonymous  with  "intentional":  Benk- 
ert  v.  Benkert,  32  Cal.  467,  470.  See 
Thornburg  v.  Thornburg,  IS  W.  Va.  526. 

18.  The  word  "wilful"  is  not  neces- 
sarily technical.  Ordinary  words  shall 
be  construed  "according  to  the  context 
and  the  approved  usage  of  the  lan- 
guage": Towle  v.  Matheus,  130  Cal.  574, 
577,   62  Pac.  1064. 

19.  An  allegation  as  a  basis  for  ex- 
emplary damages  within  section  3294  of 
the  California  Civil  Code  is  sufficient 
which  reads  as  follows:  "That  the  de- 
fendant refused  to  comply  with  said  de- 
mand and  refused  to  supply  the  plaint- 
iff with  water  unless  the  plaintiff  would 
repay  to  the  defendant  the  amount  paid 
by  defendant  to  plaintiff  for  the  right 
of  way  across  his  lands  for  the  said 
ditch  or  canal;  that  the  said  refusal  of 
the  defendant  was  wanton,  wilful,  ma- 
licious, and  without  any  right  whatever, 
and  was  made  for  the  purpose  of  ex- 
torting from  this  plaintiff  the  amount  of 
money  paid  by  defendant  to  plaintiff 
for  said   right  of  way,     *     •     •     an(j   f0r 


1744  PENALTIES  AND  FORFEITURES.  [Tit.  XVI. 

the  purpose  of  damaging,  injuring,  and  (for  damages  for  failure  to  deliver  water 
destroying  the  crop  growing  on  said  for  Irrigation).  See  Greenberg  v.  West- 
lands,  and  for  the  purpose  of  vexing,  era  Turf  Assn.,  140  Cal.  358,  78  Pac. 
harassing,  and  annoying  this  plaintiff  1050,  (holding  Instruction  proper  for 
herein":  Lowe  v.  Yolo  County  C.  W.  punitive  damages). 
Co.,    8    Cal.   App*  167,    96    Pac.    379,    381, 


CHAPTER  CXXVIII. 

Penalties  and  Forfeitures. 

Pag© 

§  448.  Code  provisions 1744 

§  449.  Complaints  [or  petitions]  1753 

Form  No.  1051.  For  penalty.     (General  form.) 1753 

Form  No.  1052.  For  penalty  for  violation  of  ordinance  of  board 

of  supervisors    1753 

Form  No.  1053.  For  penalty  for  sale  of  liquors  without  license  1754 

Form  No.  1054.  Against  witness  for  disobeying  subpoena 1754 


§448.     CODE  PROVISIONS. 

Relief  in  case  of  forfeiture. 

California,  §  3275.  Whenever,  by  the  terms  of  an  obligation,  a 
party  thereto  incurs  a  forfeiture,  or  a  loss  in  the  nature  of  a  for- 
feiture, by  reason  of  his  failure  to  comply  with  its  provisions,  he 
may  be  relieved  therefrom,  upon  making  full  compensation  to  the 
other  party,  except  in  case  of  a  grossly  negligent,  wilful,  or  fraud- 
ulent breach  of  duty.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6039.     North  Dakota,  Rev.  Codes  1905,  §  6555. 
Oklahoma,  Rev.  and  Ann.   Stats.  1903    (Wilson),   §2722;    Comp.   Laws   190& 
(Snyder),  §  2880.    South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2285. 

Penalty  for  overcharging. 
California,  §  504.  Any  corporation,  or  agent  or  employee  thereof, 
demanding  or  charging  a  greater  sum  of  money  for  fare  on  the 
cars  of  [a]  *  *  *  street  railroad  than  that  fixed,  as  provided  in 
this  title,  [regulating  street  railroad  corporations  generally,]  for- 
feits to  the  person  from  whom  such  sum  is  received,  or  who  is  thus 
overcharged,  the  sum  of  two  hundred  dollars,  to  be  recovered  in  a 
civil  action,  in  any  justice's  court  having  jurisdiction  thereof,  against 
the  corporation.    (Kerr's  Cyc.  Civ.  Code.) 


Ch.  CXXVIIL]  CODE  PROVISIONS.  1745 

The  following  statute  treats  of  the  same  subject  as  the  foregoing: 
»  Hawaii,  Rev.  Laws  1905,  §  843. 

a  Hawaii,    §  843.     (After    providing    for  agent    or   employee    shall    forfeit    to    the 

fares,  regulations,  etc.)     *     *     *  person  who  is  thus  overcharged  the  sum 

If  said  association  and  others,  or  any  of  one  hundred  dollars,  to  be  recovered 
agent  or  employee  thereof,  shall  demand  in  a  civil  action  in  any  court  having 
or  charge  a  greater  sum  of  money  for  jurisdiction  thereof.  *  *  *  (The  re- 
fare  on  the  cars  of  said  association  and  mainder  of  the  section  relates  to  trial, 
others  than  that  fixed  by  this  chapter,  presumptions,  etc.) 
such    association    and    others,    or    such 


Regulations  as  to  tolls,  toll-roads — Penalties,  etc. 

California,  §  514.  All  wagon-road  corporations  may  bridge  or 
keep  ferries  on  streams  on  the  line  of  their  road,  and  must  do  all 
things  necessary  to  keep  the  same  in  repair.  They  may  take  such 
tolls  only  on  their  roads,  ferries,  or  bridges,  as  are  fixed  by  the 
board  of  supervisors  of  the  proper  county  through  which  the  road 
passes,  or  in  which  the  ferry  or  bridge  is  situate.  But  in  no  case 
must  the  tolls  be  more  than  sufficient  to  pay  fifteen  per  cent,  nor 
less  than  ten  per  cent  per  annum,  on  the  cost  of  construction,  after 
paying  for  repairs  and  other  expenses  for  attending  to  the  roads, 
bridges,  or  ferries.  If  tolls,  other  than  as  herein  provided,  are 
charged  or  demanded,  the  corporation  forfeits  its  franchise,  and 
must  pay  to  the  party  so  charged  one  hundred  dollars  as  liquidated 
damages.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arizona,  Rev.  Stats.  1901,  flfl  3999,  4005.  b  Colorado,  Rev.  Stats.  1908, 
C.  C.  §6465.  c  Idaho,  Rev.  Codes  1909,  §§991,  998.  <J  Missouri,  Ann.  Stats. 
1906,  §  1230.  «  Montana,  Rev.  Codes  1907,  §  1448.  t  New  Mexico,  Comp.  Laws 
1897,  §§  1866,  1867.  e  North  Dakota,  Rev.  Codes  1905,  §  4407.  h  Oklahoma, 
Rev.  and  Ann.  Stats.  1903  (Wilson),  §1074;  Comp.  Laws  1909  (Snyder), 
§  1413.  i  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot.),  §§  5081,  5084,  5085. 
J  South  Dakota,  Rev.  Codes  1903,  C.  C.  §  568.  k  Washington,  Code  1910  (Rem. 
&  Bal.),  §  5721.  i  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §  1881.  m  Wyom- 
ing, Rev.  Stats.  1899,  §  3060. 

ai  Arizona,  fl  3999.  On  complying  with  rates  of  toll  thereon,  as  he  or  they  may 
the  provisions  of  the  preceding  sec-  deem  proper,  for  the  term  of  ten  years  af- 
tlon,  said  person  or  persons,  or  his  ter  the  completion  of  said  road,  and  for 
or  their  grantees  or  assigns,  shall  thereby  such  further  time  as  the  board  of  super- 
have  and  acquire  the  right  and  franchise  visors  of  the  county  in  which  such  road 
to  maintain  and  operate  a  toll- road  be-  is  or  shall  be  located,  may  grant;  and  the 
tween  the  termini  mentioned  in  said  cer-  board  of  supervisors  of  any  county  in 
tificate,  and  to  establish  and  collect  such  the     territory     in     which     any    toll-road 


1746 


PENA/^TIES  AND  FORFEITURES. 


[Tit.  XVI. 


shall  have  been,  or  may  hereafter  be, 
constructed  or  maintained,  is  hereby 
given  and  granted  power  and  authority, 
either  before  or  after  the  expiration  of 
the  term  of  any  franchise  or  right  for 
the  construction  or  maintenance  of  any 
toll-road,  or  for  establishing  or  taking 
tolls  thereon,  to  extend  the  term  of  any 
such  right  or  franchise  for  a  further  pe- 
riod not  exceeding  ten  years.  Provided, 
however,  that  in  case  any  franchise  has 
been  heretofore  extended  under  any  pro- 
visions of  law  heretofore  or  now  in  force, 
then  any  additional  extension  granted 
under  the  provisions  of  this  act,  shall 
not  be  for  a  period  which,  taken  with 
the  extension  already  granted,  shall  ex- 
ceed the  said  period  of  ten  years.  Upon 
any  extension  herein  provided  for  being 
granted  said  owner,  his  grantees  or  as- 
signs, may  resume  possession  and  con- 
trol of  such  toll-road,  if  the  same  shall 
have  been  surrendered,  and  may  con- 
tinue to  exercise  and  enjoy  the  said 
franchise  and  all  the  rights  and  priv- 
ileges therefor  for  the  period  of  such  ex- 
tension. After  the  expiration  of  five 
years  from  the  time  of  the  commence- 
ment of  taking  tolls  on  any  such  road, 
the  county  or  counties  in  which  it  is 
located  shall  have  the  right  to  purchase 
any  such  road  at  an  appraised  value  to 
be  determined  by  five  appraisers  to  be 
selected  as  follows:  Two  by  the  owner 
or  owners,  two  by  the  county  super- 
visors qf  any  county  in  which  said  road 
is  located  wishing  to  purchase  the 
same,  and  one  by  the  four  appraisers 
hereinbefore  provided  for;  and  their  val- 
uation shall  be  deemed  the  true  value 
of  the  road.  The  rates  of  toll  so  es- 
tablished shall  be  written,  printed,  or 
painted  in  a  plain  and  legible  manner 
on  a  bulletin  board,  to  be  posted  at 
each  toll-gate  on  such  road;  and  if  any 
person  who  shall  construct  any  toll- 
road  under  the  provisions  of  this  chap- 
ter, or  who  shall  own  any  interest  in 
any  road  so  constructed,  shall  demand 
or  collect  any  higher  or  greater  rates 
of  toll  than  those  specified  on  said  bul- 
letin board,  he  shall  be  deemed  guilty 
of  a  misdemeanor,  and,  on  conviction 
thereof  before  any  court  of  competent 
jurisdiction,  shall,  for  each  offense,  be 
punished  by  fine  in  any  sum  not  ex- 
ceeding one  hundred  dollars,  and  in 
default  of  payment  of  such  fine  may,  in 
the  discretion  of   the  court,   be  commit- 


ted to  the  county  jail  until  such  fine 
be  paid.  One-half  of  all  fines  so  col- 
lected shall  go  to  the  informer  or  pros- 
ecutor, and  one-half  to  the  school  fund 
of  the  county;  but  In  no  case  shall  the 
county  be  responsible  for  the  costs  in 
any  prosecution.  All  rights,  privileges 
and  franchises  which  may  be,  or  which 
have  heretofore  been  acquired  under  or 
pursuant  to  the  provisions  of  this  chap- 
ter or  under  or  pursuant  to  the  pro- 
visions of  any  other  law  now  or  hereto- 
fore in  force,  providing  for  or  relating  to 
the  construction  or  maintenance  of  toll- 
roads,  or  the  establishing  or  collection 
of  tolls  thereon,  may  be  assigned  or 
transferred,  and  any  transferee  or  as- 
signee thereof  shall  have  and  enjoy  all 
of  the  privileges  and  rights  and  shall  be 
subject  to  all  of  the  duties  of  the  person 
or  persons  originally  acquiring  the  same; 
and  all  laws  now  or  heretofore  in  force, 
providing  for  or  relating  to  the  con- 
struction or  maintenance  of  toll-roads  or 
the  establishing  or  collection  of  toll  rates 
thereon,  shall  be  construed  as  having 
authorized  and  as  authorizing,  and  all 
such  laws  are  hereby  declared  to  have 
authorized,  when  the  same  were  enacted, 
the  transfer  of  all  such  rights,  privileges 
and  franchises;  and  any  and  all  rights, 
franchises  or  privileges  of  every  kind 
heretofore  acquired  or  held  under  or  pur- 
suant to  the  provisions  of  any  law  now 
or  heretofore  in  force,  providing  for  or 
relating  to  the  construction  or  mainte- 
nance of  toll-roads,  or  the  establishing  or 
collection  of  toll  rates  thereon,  shall  be 
held  and  deemed  to  have  been  at  all 
times  transferable  and  assignable  to  the 
same  extent  as  though  the  assignment 
and  transfer  thereof  had  at  all  times 
been  expressly  authorized  by  such  law; 
all  deeds,  conveyances  or  agreements 
heretofore  made  or  executed  for  the  pur- 
pose of  assigning  or  transferring  or  pur- 
porting to  transfer  or  assign  any  such 
rights,  privileges  or  franchises,  shall,  for 
all  purposes  be  held  and  deemed  to  have 
been  at  all  times  duly  authorized  by  law, 
and  the  same  are  hereby  ratified,  ap- 
proved and  confirmed;  and  the  making 
or  execution  of  any  such  deed,  convey- 
ance or  agreement,  or  the  assignment  or 
transfer,  or  the  attempted  assignment  or 
transfer,  of  any  such  right,  privilege  or 
franchise,  shall  not  be  held  or  deemed  to 
have  worked  at  any  time  a  forfeiture  or 
abandonment    thereof,    or    to    have    been 


Cli.  CXXV1II.] 


CODE  PROVISIONS. 


174  V 


or  to  be  any  ground  or  cause  for  the 
forfeiture  thereof.  (Amended  Mch.  18, 
1907,  Laws  1907,  pp.  72,  73.) 

as  Arizona,    fl  4005.     Whenever  any   ten 
taxpayers  in  any  county  through  which 
a  road  is  located  and  constructed  under 
the  provisions  of  this  law  are  convinced 
that  tolls  charged  on  said  road  are  un- 
reasonably   high,     they    shall    have    the 
right  to  petition  to  the  board  of  county 
supervisors    to    have    said    rate    reduced, 
which   petition  shall  be  accompanied  by 
an    affidavit    setting   forth    wherein    said 
rates    of    toll    should    be    reduced,    and 
thereupon    the    county   supervisors    shall 
immediately    notify    the    owners    of    the 
road  so  complained  of,   who  shall  select 
three  men  to  act  with  the  county  super- 
visors, and  the  six  shall  select  a  seventh 
man,    and    the    seven    so    selected    shall 
have  power  to  fix  the  rates  of  toll  to  be 
charged  on  any  road  thus  complained  of, 
which   rates   shall   not   be  reduced  for  a 
period  of  five  years  thereafter,  unless  at 
the   option    of    the    owners    thereof.      At 
the    expiration    of    five    years,    as    men- 
tioned   in    section    3644,    the    county    or 
counties    through    which    said    road    or 
roads    are    located   shall    have    the   right 
to    purchase    the    same;    the    price    and 
mode  of  payment  to  be  fixed  by  a  board 
of  referees,  composed  of  the  same  num- 
ber and  selected  in  the  same  manner  as 
mentioned    in   section   3644   of   this   title: 
Provided,   however,   that  should  no  com- 
plaint be  made  of  too  high  rates  of  toll, 
the   said   county   or   counties   shall   have 
the  right  of  purchase,  as  aforesaid,   five 
years   from   the  date  of  the   completion 
thereof. 

b  Colorado,  §  6465.  The  unlawful  col- 
lection of  toils,  or  the  taking  or  collec- 
tion of  unlawful  tolls,  shall  be  punish- 
able by  a  fine  not  less  than  ten  dollars, 
nor  more  than  one  hundred  dollars.  A 
suit  may  be  brought  before  any  justice 
of  the  peace  within  the  county  in  which 
such  unlawful  toll  may  have  been  col- 
)ected,  by  any  person  or  persons  who 
may  have  been  compelled  to  pay  such 
unlawful  toll,  for  the  recovery  of  such 
unlawful  tolls,  and  for  the  recovery  of 
such  fines  as  may  be  imposed  by  the 
magistrate  or  justice  of  the  peace,  which 
fine  shall  be  paid  to  the  complainant  in 
such  action. 

ci  Idaho,  §  991.  The  road  company  may 
bridge  any  stream  or  river  on  the  route 
of  their  road,  when  not  within  the  limits 
prescribed   by   law   for   the   erection   and 


maintenance  of  any  other  bridge,  and  In 
bridging  streams  used  for  rafting  lum- 
ber, the  bridge  must  be  so  constructed 
as  not  to  prevent  or  endanger  the  pas- 
sage of  any  raft  forty  feet  in  width. 

c2  Idaho,  §  988.  The  board  of  county 
commissioners  must  fix  and  regulate  the 
rates  of  toll  for  all  franchises  granted 
under  the  provisions  of  this  chapter 
within  the  limits  of  their  respective 
counties,  having  due  regard  to  the  cost 
of  construction,  magnitude  of  structure 
and  expenses  incident  thereto,  and  in 
keeping  the  same  in  good  repair.  The 
board  of  commissioners  must  also  tax 
such  sum  as  may  appear  reasonable,  not 
less  than  twenty-five  dollars  nor  more 
than  two  hundred  dollars  per  annum,  for 
each  license  granted;  and  the  person  or 
parties  to  whom  such  license  is  granted, 
must  pay  to  the  county  treasurer  the  tax 
for  one  year  in  advance,  taking  his  re- 
ceipt therefor,  and  upon  the  production 
of  such  receipt  the  clerk  of  the  board  of 
commissioners  must  issue  such  license, 
with  a  statement  of  the  rates  of  toll  as 
fixed,  under  seal  of  the  board  of  commis- 
sioners. 

d  Missouri,  §  1230.  Whenever  five  con- 
secutive miles  of  such  road  shall  have 
been  completed,  or  if  its  whole  length 
shall  be  less  than  five  miles,  then  when 
the  whole  of  such  road  shall  have  been 
completed,  the  directors  of  such  com- 
pany may  erect  toll-gates  at  such  points 
and  at  such  distances  from  each  other 
as  they  may  deem  proper,  and  ex- 
act toll  from  persons  traveling  on  such 
road,  not  exceeding  the  following  rates: 
For  every  sleigh,  carriage  or  vehicle 
drawn  by  one  animal,  one  and  a  half 
cents  per  mile,  and  one  cent  in  addi- 
tion for  every  additional  animal;  for 
every  horse  and  rider,  or  led  horse,  one 
cent  per  mile;  for  every  twenty  sheep 
or  hogs,  two  cents  per  mile;  and  for 
every  twenty  head  of  neat  cattle,  mules 
or  asses,  five  cents  per  mile;  and  in  that 
proportion  for  any  less  number:  Pro- 
vided, that  persons  living  within  one 
mile  of  any  gate  shall  be  permitted  to 
pass  the  same  at  half  the  usual  rates. 

e  Montana,  §  144S.  The  board  of  county 
commissioners  of  each  county,  through 
which  any  toll-road  passes  or  any  toll- 
bridge  is  situated,  shall  grant  a  permit 
to  operate  the  same  and  shall  fix  the 
rate  of  toll  which  may  be  charged  by 
the  owner  of  such  road  or  bridge  for 
the  portion  of  the  road  or  bridge  in  each 


1748 


PENALTIES  AND  FORFEITURES. 


[Tit.  XVI. 


particular  county,  which  rate  shall  not 
be  diminished  oftener  than  every  two 
years,  and  may  by  order,  regulate  and 
govern  the  amount  of  weight  and  num- 
ber of  animals  that  may  be  driven  on  to 
a  toll-road  at  any  one  time,  and  pre- 
scribe rules  for  the  government  of  the 
draws  or  swings  and  attendance  of  the 
same,  and  prescribe  penalties  for  the 
disobedience  of  such  rules.  (Act  ap- 
proved  March    2,    1S93.) 

fi  New  Mexico,  §  1S66.     That  such  cor- 
poration   may,    after    the    completion    of 
such    wagon   road    or   any    part    thereof, 
and    after    the    completion    of    any    such 
bridge  or  ferry  for  and  by  the  traveling 
public,    apply   by   petition    in    writing   to 
the  board  of  county  commissioners  of  the 
county  or  counties  in  or  through  which 
such  road,  bridge  or  ferry  is  or  has  been 
constructed,    for    rates,    prices    and    tolls 
to    be    charged    and    collected    from    the 
traveling   public   so   using   and   traveling 
on  such  toll-road,  bridge  or  ferry,  which 
petition   shall  state  such   facts   in   refer- 
ence to  a  road,   bridge  or  ferry,  as  will 
be  sufficient  to  inform  the  board  of  com- 
missioners as  to  enable  the  commission- 
ers  to   fix   the   rates,    tolls    and   charges, 
equal   and  just  between   the  corporation 
owning  the  road,  bridge  or  ferry  and  the 
traveling  public  using  the  same,  and  the 
rates,    tolls    and    charges    so    fixed    shall 
remain  the  same  for  two  years,  and  at 
the    expiration    of   each    two    years,    the 
corporation    shall    petition    as    aforesaid 
for    the    fixing    of    the    rates,    tolls    and 
charges    by    the    board    of    county    com- 
missioners.   In  case  the  corporation  shall 
be  dissatisfied  with  the  rates,    tolls   and 
charges   so   fixed   by   the   board,    it   may 
appeal    within    ten    days    from    such    de- 
cision   and    determination,    to    the   judge 
of    the    district   court    of    the    county    in 
which  the  road,   bridge  or  ferry  is  situ- 
ated, by  paying  to  the  clerk  of  the  pro- 
bate  court  of   the   county   in   which    the 
matter  is  pending,  one  dollar,  who  shall, 
upon  such  payment  being  made,  at  once 
transmit   all   the   papers   in   the   case   on 
file  in  his  office  to  the  clerk  of  the  dis- 
trict court  to  which  the  appeal  is  taken, 
and    the    corporation   shall    then    present 
the    matter    to    the    district    judge,    who 
shall  at  once  appoint  three  disinterested 
citizens   and   tax   payers   of   the   county 
to    examine    the    road,    bridge    or    ferry, 
and    report    their    finding    and    fixing    of 
rates,    tolls   and   charges   in   writing   and 


under  oath  to  the  said  judge,  within 
the  time  by  him  to  be  fixed,  and  unless 
it  shall  appear  to  the  judge  that  manifest 
injustice  has  been  done  by  the  persons 
appointed,  he  shall  approve  the  report, 
and  the  rates  so  fixed  shall  remain  for 
the  ensuing  two  years,  which  commis- 
sioners so  appointed  shall  be  paid  by  the 
corporation  so  appealing  for  their  serv- 
ices, such  sum  and  on  such  terms  as  the 
judge  may  allow,  together  with  the  other 
costs   incurred    by   such    appeal. 

K  New  Mexico,  §  1867.  That  any  such 
corporation  so  constructing,  keeping  and 
maintaining  any  such  wagon  road,  bridge 
or  ferry  shall  have  power  and  authority 
to  charge,  receive  and  collect  the  rates, 
tolls  and  charges  fixed,  as  aforesaid, 
from  any  person  or  persons,  companies 
or  corporations  so  using  such  road, 
bridge  or  ferry,  and  to  prohibit  any  such 
persons  from  using  the  same  until  the 
rates,  tolls  and  charges  are  paid  or  ten- 
dered; and  any  such  persons  using  or  at- 
tempting to  use  the  same  until  the 
rates,  tolls  and  charges  are  so  paid  or 
tendered  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof  be- 
fore any  justice  of  the  peace  having  jur- 
isdiction shall  be  fined  in  any  sum,  for 
each  offense,  not  less  than  five  dollars, 
nor  more  than  ten  dollars,  said  fine  to  go 
to  the  public  school  fund  of  the  county, 
g  North  Dakota,  §  4407,  substantially 
same  as  Cal.  Civ.  Code,  §  514,  except  in 
line  6,  after  "situate"  insert  "subject, 
however,  to  the  limitation  of  rates  of 
ferriage  prescribed  in  the  general  law 
upon  ferries." 

h  Oklahoma,  §  1074,  same  as  North  Da- 
kota §  4407. 

ii  Oregon,  §  5081.  All  streams  or  other 
waters  upon  the  line  of  such  roads  shall 
be  safely  and  securely  bridged,  except 
where  the  county  court  of  the  county 
wherein  the  line  of  such  road  may  cross 
such  streams,  or  other  water,  or  if  such 
stream  or  other  water  from  the  bound- 
ary between  two  counties,  then  the 
county  court  of  either  of  said  counties 
may  authorize  the  corporation  to  place 
a  ferryboat  upon  such  stream  or  other 
water,  to  be  kept  and  run  for  such  toll 
as  the  county  court  may  prescribe,  and 
in  the  manner  required  of  ferries  estab- 
lished under  the  general  statutes  in  re- 
lation to  ferries;  or  except  where  such 
county  court  may  authorize  such  corpo- 
ration   to    connect    their    road    with    a 


Ch.  CXXVII1  J 


CODE  PROVISIOXS. 


1740 


ferry,  now  or  hereafter  established  over 
such  stream  or  other  water  under  the 
general  statute   in   relation  to  ferries. 

J2  Oregon,  §  5084.  The  rates  of  toll 
that  may  be  charged,  collected,  and  re- 
ceived shall  be  fixed  and  established  by 
the  county  court  sitting  as  a  board  of 
commissioners  of  the  county  where  such 
road  is  located  or  where  it  has  its  prin- 
cipal office,  at  the  April  term  of  said 
court  annually,  or  as  soon  thereafter  as 
practicable,  which  order  shall  be  entered 
of  record,  and  shall  distinctly  specify  the 
amount  of  toll  that  may  be  charged  upon 
the  following  items  or  classes  of  per- 
sons or  property:  Sheep  and  hogs; 
horses,  mules,  asses,  and  cattle,  whether 
being  driven  loose  or  led;  a  person  other 
than  a  footman  not  traveling  in  a  vehi- 
cle; a  two-wheeled  vehicle  loaded  or  un- 
loaded; a  four-wheeled  vehicle  loaded 
or  unloaded,  with  two  horses,  mules,  or 
oxen,  and  for  each  additional  horse, 
mule,  or  ox  attached  to  said  vehicle, — 
to  be  graded  and  regulated  according  to 
the  distance  traveled  or  to  be  traveled 
upon  such  road  at  so  much  per  mile;  and 
no  greater  amount  shall  be  charged  or 
received  than  that  fixed  by  the  county 
court  as  herein  provided. 

13  Oregon,  §  5085.  If  a  greater  amount 
Is  charged,  demanded,  or  received  than 
that  allowed  by  the  order  of  the  county 
court  as  herein  provided,  said  corpora- 
tion shall  forfeit  its  charter,  and  it  is 
hereby  made  the  imperative  duty  of  the 
district  attorney  of  the  proper  county 
to  prosecute  any  such  corporation  for 
violating  the  provisions  of  the  laws  of 
the  state  of  Oregon  governing  such 
roads,  which  action  or  suit  is  to  be 
brought  in  the  name  of  the  state  of 
Oregon. 

j  South  Dakota,  C.  C.  §  568,  same  as 
North  Dakota  §  4407. 

k  Washington,  §  5721,  same  as  Oregon 
f  5081. 

1  Wisconsin,  §  1881.  Each  toll-gatherer 
of  such  corporation  may  detain  and  pre- 
vent from  passing  through  his  gate  all 
persons  riding,  leading  or  driving  ani- 
mals  or   carriages   subject   to   toll    until 

Jury's  PL— 111. 


they  shall  have  paid  respectively  the 
tolls  authorized  by  law;  and  every  such 
toll-gatherer  who  shall  unreasonably 
hinder  or  delay  any  traveler  after  he 
shall  have  paid  the  tolls  lawfully  de- 
manded or  shall  demand  and  receive 
from  any  person  more  toll  than  by  law 
he  is  authorized  to  collect  shall  for  each 
offense  forfeit  ten  dollars. 

m  Wyoming,  §  3060.  When  any  three 
or  more  persons  shall  associate  to  form 
a  company  for  the  purpose  of  construct- 
ing a  wagon  road  under  the  provisions  of 
this  chapter,  their  certificate  of  incor- 
poration, in  addition  to  the  matters  here- 
inbefore required  to  be  stated  therein, 
shall  specify  the  termini  of  said  road  and 
the  route  of  the  same,  as  near  as  may 
be;  and  the  said  company  shall  have  the 
right  of  way  over  the  line  named  in  the 
certificate,  to  erect  toll-gates,  not  to  ex- 
ceed one  to  every  ten  miles  of  road,  and 
to  collect  toll  thereat  at  the  rate  pre- 
scribed by  the  county  commissioners,  or 
the  tribunal  transacting  county  business, 
upon  the  application  of  such  corpora- 
tion, either  at  or  before  the  time  of  com- 
mencing such  road,  or  after  the  comple- 
tion thereof;  provided,  that  such  rates 
of  toll  shall  remain  in  force  and  shall  be 
collected  from  persons  traveling  such 
road  for  two  years  after  the  time  of 
completing  such  road;  and  thereafter, 
at  the  expiration  of  every  two  years, 
the  county  commissioners  or  tribunal 
transacting  county  business  in  each 
county,  through  which  such  road  passes, 
shall  fix  and  regulate  such  rates  of  toll, 
but  not  at  higher  rates  than  those  orig- 
inally prescribed;  And  provided  further, 
That  nothing  in  this  chapter  shall  be  so 
construed  as  to  authorize  any  corpora- 
tion formed  under  the  provisions  hereof, 
to  locate  their  road,  railroad,  ditch  or 
flume,  or  any  part  thereof,  upon  any  toll- 
road  previously  existing,  nor  upon  any 
public  highway,  heretofore,  and  at  the 
time  of  the  organization  of  such  corpo- 
ration, used  and  traveled  as  such,  ex- 
cept it  may  be  necessary  to  cross  such 
toll-road  or  public  highway;  all  such 
rates  of  toll  shall  be  conspicuously  posted 
at  every  gate  upon  such  road. 


17J0  PENALTIES  AND  FORFEITURES.  [Tit.  XVI. 

Penalties  for  trespasses  on  property  of  corporation. 
California,  §  520.     Every  person  who : 

1.  Wilfully  breaks,  cuts  down,  defaces,  or  injures  any  mile-stone 
or  post  on  any  wagon,  turnpike,  or  plank  road;  or, 

2.  Wilfully  breaks  or  throws  down  any  gate  on  such  road;  or. 

3.  Digs  up  or  injures  any  part  of  such  road  or  anything  thereunto 
belonging;  or, 

4.  Forcibly  or  fraudulently  passes  any  gate  thereon  without  hav- 
ing paid  the  legal  toll; 

For  each  offense  forfeits  to  the  corporation  injured  the  sum  of 
twenty-five  dollars,  in  addition  to  the  damages  resulting  from  his 
wrongful  act.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  tho 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Arkansas,  Dig.  of  Stats.  1904  (Kirby),  §§1919,  1920.  b  Colorado,  Rev. 
Stats.  1908,  C.  C.  §  6466.  c  Kansas,  Gen.  Stats.  1905  (Dassler),  §  1407.  a  Mis- 
souri, Ann.  Stats.  1906,  §  1233.  North  Dakota,  Rev.  Codes  1905,  §  4413.  Okla- 
homa, Rev.  and  Ann.  Stats.  1903  (Wilson),  §  1080;  Comp.  Laws  1909  (Snyder), 
§1419.  e  Oregon,  Ann.  Codes  and  Stats.  1902  (Bel.  &  Cot),  §5086.  South 
Dakota,  Rev.  Codes  1903,  C.  C.  §  574.  t  Washington,  Code  1910  (Rem.  &  Bal.), 
§5724.     6  Wisconsin,  Stats.  1898  (San.  &  Ber.  Ann.),  §1882. 

ai  Arkansas,  §  1919.  Every  person  who  which  to  go  to  the  county,  and  the 
shall  wilfully  break,  cut  down,  deface  other  half  to  the  corporation  injured, 
or  injure  any  mile-stone  or  post  on  b  Colorado,  §  6466.  Any  person  travel- 
any  turnpike  road,  or  wilfully  break  or  ing  upon  any  toll-road  and  refusing  to. 
throw  down  any  gate  or  turnpike  on  pay  toll  after  such  toll  shall  have  been 
any  such  road,  or  anything  thereunto  demanded  by  the  regularly  authorized 
belonging,  or  forcibly  or  fraudulently  toll-gatherer,  shall  be  subject  to  a  fine 
pass  any  gate  thereon  without  having  In  any  sum  not  exceeding  twenty  dol- 
paid  the  legal  toll,  for  each  of  such  of-  lars  for  such  offense,  the  same  to  be  col- 
fenses  the  person  thus  offending  shall  lected  before  any  justice  of  the  peace  in 
forfeit  and  pay  the  sum  of  twenty-five  the  county  wherein  such  road  is  located, 
dollars,  in  addition  to  the  damages  re-  c  Kansas,  §  1407.  If  any  person  or  per- 
sulting  from  his  wrongful  act,  one-half  sons  using  any  part  of  said  road,  shall, 
of  the  fine  aforesaid  to  go  to  the  bene-  with  intent  to  defraud  such  company, 
fit  of  the  county,  and  the  other  half  pass  through  any  private  gate  or  bars,  or 
to  the  benefit  of  the  corporation  thus  along  other  ground  near  said  road,  to 
injured.  avoid  any  toll-gate,  or  shall  falsely  rep- 

a2  Arkansas,  §  1920.  Every  person,  who,  resent  himself  or  herself  to  any  toll- 
in  order  to  avoid  the  payment  of  legal  gatherer  as  entitled  to  exemption  from 
toll  shall  with  his  team,  carriage  or  paying  toll,  or  shall  make  any  untrue 
hor'se  or  with  anything  else  subject  to  statement  as  to  the  distance  he  or  they 
toll  turn  out  of  any  such  turnpike  road  shall  have  traveled  or  intend  to  travel  on 
or  pass  any  gate  thereon  on  ground  ad-  the  road,  or  shall  practise  any  fraudulent 
jacent  thereto,  and  again  enter  on  such  means,  and  thereby  lessen  or  avoid  the 
road,  or  without  entering  again  on  sucn  payment  of  tolls,  each  and  every  person 
road!  if  for  the  purpose  of  evading  such  concerned  in  any  such  fraudulent  prac- 
toll,  shall,  for  each  offense,  forfeit  and  tices  shall  for  every  such  offense  forfeit 
pay  the  sum   of  ten  dollars,   one-half  of  and  pay  to  such  company  the  sum  of  fiv» 


Ch.  CXXVIII.j 


CODE  PROVISIONS. 


1751 


dollars,  to  be  recovered  by  such  com- 
pany in  an  action  of  debt,  before  any 
justice  of  the  peace  of  the  county  where 
the  offender  may  be  found. 

d  Missouri,  §  1233,  same  as  Kansas  G. 
S.   §  1407. 

e  Oregon,  §  5086.  Any  person  traveling 
upon  any  road  herein  mentioned,  who 
shall  pass  through  a  gate  thereon,  with- 
out paying  the  toll  legally  chargeable 
thereat,  or  who  shall  go  around  such 
gate,  with  intent  to  avoid  the  payment 
of  such  toll,  shall  be  liable  to  the  corpo- 
ration for  three  times  the  amount 
thereof,  and  any  corporation  which,  by 
its  agents  or  servants,  or  in  any  manner, 
shall  illegally  collect  toll  from  any  per- 
son   traveling    on    such    road,    shall    be 


liable  to  such  person  for  three  times  the 
amount  thereof. 

(Washington,  §5724,  same  as  Oregon 
|  5086. 

g  Wisconsin,  §  1882.  Every  person  trav- 
eling on  any  plank  or  turnpike  road  who 
shall  untruly  report  or  refuse  to  report, 
when  requested  by  any  toll-gatherer  on 
said  road,  the  distance  he  has  traveled 
or  desires  to  travel  thereon,  or  shall  re- 
fuse or  neglect  to  pay  the  legal  tolls 
therefor,  or  shall  run  through  or  forcibly 
or  fraudulently  pass  any  toll-gate  on  any 
such  road,  without  paying  the  legal  tolls 
or  to  avoid  the  payment  of  legal  toll 
shall  turn  out  of  such  road  and  pass 
around  any  toll-gate  and  enter  again  on 
such  road  shall  forfeit  for  each  offense 
ten  dollars. 


Penalty  for  wilfully  or  maliciously  injuring  telegraph  or  telephone 

property. 
California,  §  538.  Any  person  who  wilfully  and  maliciously  does 
any  injury  to  any  telegraph  or  telephone  property,  mentioned  in 
the  preceding  section,  is  liable  to  the  corporation  for  one  hundred 
times  the  amount  of  actual  damages  sustained  thereby,  to  be  re- 
covered in  any  court  of  competent  jurisdiction.  (Kerr's  Cyc.Civ. 
Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  tho 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

»  Alaska,  Ann.  Codes  1907,  Pen.  C.  (Carter),  §165.  b  Arkansas,  Dig.  of 
Stats.  1904  (Kirby),  §  1899.  Idaho,  Rev.  Codes  1909,  §  2835.  o  Nevada,  Comp. 
Laws  Ann.  1900  (Cutting),  §§1059,  1077.  a  Oregon,  Ann.  Codes  and  Stats. 
1902  (Bel.  &  Cot.),  §  2143.    e  Washington,  Code  1910  (Rem.  &  Bal.),  §  9316. 


a  Alaska,  Pen.  C.  §  165.  That  if  any  per- 
son shall  wilfully  and  maliciously  cut, 
break,  or  throw  down  any  pole  or  any 
tree  or  other  object  used  in  any  line  of 
telegraph,  telephone,  or  system  for  the 
transmission  of  light  or  power  by  use  of 
electricity,  or  shall  wilfully  and  ma- 
liciously break,  displace,  or  injure  any 
insulator  in  use  in  any  such  line,  or  shall 
wilfully  and  maliciously  cut,  break,  or 
remove  from  its  insulators  any  wire  used 
for  any  of  the  purposes  above  enumer- 
ated, or  shall,  by  the  attachment  of  a 
ground  wire,  or  by  any  other  contriv- 
ance, wilfully  and  maliciously  destroy 
the  insulation  of  such  line,  or  interrupt 
the  transmission  of  the  electric   current 


through  the  same,  or  shall  in  any  other 
manner  wilfully  and  maliciously  injure, 
molest,  or  destroy  any  property  or  mate- 
rials appertaining  to  any  such  line,  or 
belonging  to  any  telegraph,  telephone, 
electric  light  or  power  company,  or  shall 
wilfully  and  maliciously  interfere  with 
the  use  of  any  telegraph,  telephone,  elec- 
tric light  or  power  line,  or  obstruct  or 
postpone  the  transmission  of  any  mes- 
sage over  any  telegraph  or  telephone  line, 
or  procure  or  advise  any  such  injury, 
interference,  or  obstruction,  the  person 
so  offending  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  punished  by 
fine  not  to  exceed  five  hundred  dollars, 
or     imprisonment     not     to     exceed     six 


1752 


PENALTIES  AND  FORFEITURES. 


[Tit.  XV L. 


months,  or  by  both  such  fine  and  im- 
prisonment, in  the  discretion  of  the 
court,  and  shall  moreover  be  liable  to 
the  company  whose  property  is  injured 
or  line  obstructed  in  a  sum  equal  to 
three  times  the  amount  of  actual  dam- 
ages sustained  thereby. 

b  Arkansas,  §  1S99.  Any  person  who 
shall  wilfully  and  intentionally  destroy, 
injure  or  obstruct  any  telegraph  or  tele- 
phone line,  or  any  of  the  property  or 
materials  thereof  shall,  on  conviction 
thereof,  be  fined  in  any  sum  not  less 
than  two  hundred  dollars,  and  may  be 
imprisoned  for  any  length  of  time,  not 
exceeding  one  year,  and  pay  to  the  own- 
ers of  said  line  double  the  amount  of  all 
the  damages  sustained  thereby. 

ci  Nevada,  §  1059.  If  any  person  shall 
wilfully  or  maliciously  cut,  break,  or 
throw  down  any  telegraph  pole,  or  any 
tree,  or  other  material  used  in  any  line 
of  telegraph;  or  shall  wilfully  or  mali- 
ciously break,  displace,  or  injure  any  in- 
sulator in  use  in  any  telegraph  line,  or 
shall  wilfully  or  maliciously  cut,  break, 
or  remove  from  its  insulator  any  wire 
used  as  a  telegraph  line;  or  shall,  by  the 
attachment  of  a  ground  wire,  or  by  any 
other  contrivance,  wilfully  destroy  the 
insulation  of  such  telegraph  line,  or  in- 
terrupt the  transmission  of  the  electric 
current  through  the  same;  or  shall,  in 
any  other  manner,  wilfully  injure,  mo- 
lest, or  destroy  any  property  or  mate- 
rials appertaining  to  any  telegraph  line; 
or  shall  wilfully  interfere  with  the  use 
of    any    telegraph    line,    or    obstruct,    or 


postpone  the  transmission  of  any  mes- 
sage over  the  same;  or  procure,  or  ad- 
vise any  such  injury,  interference  or  ob- 
struction, the  person  so  offending  shall 
be  deemed  guilty  of  a  misdemeanor,  and 
shall  be  punished  by  fine  not  to  exceed 
five  hundred  dollars,  or  imprisonment 
not  to  exceed  six  months,  or  by  both 
such  fine  and  imprisonment,  in  the  dis- 
cretion of  the  court;  and  shall,  moreover, 
be  liable  to  the  telegraph  company 
whose  property  is  injured,  in  a  sum 
equal  to  one  hundred  times  the  amount 
of  actual  damages  sustained  thereby. 

c2  Nevada,  §  1077.  Any  person  who 
shall  wilfully  or  maliciously  damage  or 
destroy  any  telephone  line,  or  in  any 
manner  interrupt  communication  over 
any  telephone  line,  shall  be  liable  for 
damages  and  criminal  prosecution  in  the 
same  manner  and  to  the  same  extent  as 
if  the  same  were  a  telegraph  line. 

d  Oregon,  §  2143,  substantially  same  as 
Alaska  Pen.  C.  §  165,  except,  in  line  5 
after  "telegraph,"  omit  "telephone,  or 
system  for  the  transmission  of  light  or 
power  by  use  of  electricity";  also  make 
other  necessary  changes  so  as  to  limit 
the  application  of  the  section  to  property 
and  appliances  of  telegraph  lines;  also  in 
the  line  next  to  the  last  after  "equal  to" 
change  "three"  to  "one  hundred"  before 
"times." 

e  Washington,  §  9316,  substantially 
same  as  Cal.  Civ.  Code  §  53S,  except  at 
the  end  of  line  3,  change  "one  hundred" 
to  "five"  before  "times." 


Actions  for  forfeiture  against  homestead  corporations. 

California,  §  562.  Homestead  corporations  must  not  purchase  and 
sell,  or  otherwise  acquire  and  dispose  of  real  property,  or  any  inter- 
est therein,  or  any  personal  property,  for  the  sole  purpose  of  specu- 
lation or  profit.  Nor  must  any  such  corporation  at  any  one  time 
own  or  hold,  in  trust  or  otherwise,  for  its  purposes,  real  property, 
or  any  interest  therein,  which  in  the  aggregate  exceeds  in  cash 
value  the  sum  of  two  hundred  thousand  dollars.  For  any  violation 
of  the  provisions  of  this  section,  corporations  forfeit  their  corporate 
rights  and  powers.  On  the  application  of  any  citizen  to  a  court 
of  competent  jurisdiction  such  forfeiture  may  be  adjudged,  and 
the  judgment  carries  with  it  costs  of  the  proceedings.  (Kerr's  Cyo. 
Civ.  Code.) 


Ch.  CXXVIII.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1753 

The  following  statute  treats  of  the  same  subject  as  the  foregoing: 

•  Idaho,  Rev.  Codes  1909,  §  2850. 

•  Idaho,  §  2S50,  substantially  same  as  Cal.  Civ.  Code  §  562,  except  near  the  end  of 
the  second  sentence  change  "two  hundred"  to  "fifty"  before  "thousand." 

§449.     COMPLAINTS   [OR   PETITIONS]. 
FORM    No.   1051 — For  penalty.     (General  form.) 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  on  the  day  of  ,  19  ,  the  defendant  [state  acts 
constituting  violation  of  statute,  either  following  the  words  thereof 
or  setting  forth  the  facts  specifically] ,  against  the  form  of  the  statute 
in  such  case  made  and  provided  [or  specify  the  particular  statute 
under  which  the  penalty  is  claimed]. 

2.  That  thereby  the  defendant  became  indebted  in  the  amount  of 
[penalty  or  forfeit]  to  [naming  the  one  for  whose  use  the  penalty  is 
provided]  ;  whereby  an  action  accrued  to  the  plaintiff  according  to 
the  provisions  of  [describing  statute  as  the  case  may  require]. 

Wherefore,  plaintiff  prays  judgment  for  $  ,  the  amount  of 

said  penalty,  against  defendant,  and  for  costs  of  suit. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 

FORM   No.  1052 — For  penalty  for  violation  of  ordinance  of  board  of  super- 
visors. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  or  about  the  day  of  ,  19  ,  the  board  of 
supervisors  of  the  county  of  ,  in  pursuance  of  the  power  in 
them  vested  by  law,  passed  a  law,  entitled,  "An  order,  regulation,  or 
ordinance,"  [etc.,  setting  out  title  thereof,]  a  copy  of  which  is 
annexed  as  a  part  of  this  complaint  [or  petition]. 

2.  That  since  the  passage  of  said  law,  to  wit,  on  the  day  of 

,  19  ,  the  defendant  [set  out  fully  wherein  the  defendant  had 
disobeyed  the  order] ,  contrary  to  the  provisions  of  the  said  law  above 
mentioned. 

3.  That  by  reason  of  the  premises,  the  defendant  forfeited  to  the 
plaintiff  the  sum  of  $ 

[Concluding  part.] 


1754  PENALTIES  AND  FORFEITURES.  [Tit.  XVL 

FORM   No.  1053 — For  penalty  for  sale  of  liquors  without  license. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges: 

1.  That  the  defendant  being  a  resident  of  ,  did  on  the 
day  of            ,  19     ,  at  his  house    [or  shop],  known  as  No. 
Street,  sell  to  one  C.  D.  [or  to  divers  persons]  strong  or  spirituous 
liquors  or  wines  in  quantities  less  than  [five  gallons]  at  a  time,  with- 
out having  a  license  therefor,  as  required  by  the  act  entitled  "An 
act,"  [etc.,  giving  full  title,]  passed  on  the             day  of  ,  19     . 

2.  That  thereby  the  defendant  became  and  is  indebted  to  the 
plaintiff  in  the  sum  and  penalty  of  $  ,  for  said  act  of  selling 
[or  each  and  every  of  said  acts  of  selling],  whereby  this  action  has 
accrued  to  the  plaintiff,  according  to  the  provisions  of  said  act,  for 
the  said  sum  of  $  [or,  if  more  than  one  penalty  is  claimed,  for 
the  aggregate  amount  or  sum  of  $             ]. 

[Concluding  part.] 

FORM   No.  1054 — Against  witness  for  disobeying  subpoena. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  at  ,  the  plaintiff 
caused  the  defendant  to  be  duly  served  with  a  subpoena  commanding 
him  to  attend  as  a  witness  in  the  court,  in  and  for  the  county 
of  ,  in  this  state,  on  the  day  of  ,  19  ,  there  to  give 
testimony  on  behalf  of  the  plaintiff  in  an  action  in  said  court  pend- 
ing, wherein  this  plaintiff  was  the  plaintiff  and  one  L.  M.  was 
defendant. 

2.  That  at  the  same  time  the  plaintiff  caused  $  ,  the  lawful 
fees  of  the  said  witness,  to  be  paid  [or  tendered]  to  him. 

3.  That  the  defendant,  not  regarding  his  duty,  failed  to  attend  as 
commanded,  whereby  the  defendant  became  indebted  to  the  plaintiff 
in  the  amount  of  $  ,  according  to  the  provisions  of  the  statute, 
entitled  [set  out  title  in  full]. 

4.  [Allege  special  damages,  if  any.] 

5.  That  by  reason  of  the  premises,  the  defendant  forfeited  to  the 
plaintiff  the  sum  of  $ 

[Concluding  part.] 


Ch.CXXIX.]  SPECIFIC  PERFORMANCE.  1755 


CHAPTER    CXXIX. 

Specific  Performance. 

Page 

4  450.  Code  provisions i756 

§  451.  Complaints  [or  petitions]  176° 

Form  No.  1055.  For  specific  performance  of  an  agreement  to 

make  a  lease  1760 

Form  No.  1056.  For  specific  performance  of  an  agreement  to 

exchange  property   1760 

Form  No.  1057.  By  vendee,  to  compel  specific  performance  of 
contract  to  convey  real  estate  under  which 


possession  was  given 


1761 


Form  No.  1058.  Against  administrator  of  vendor's  estate,  for 
specific  performance  of  contract  made  with 

decedent 1763 

|  452.  Cross-complaint  [or  cross-petition]   1765 

Form  No.  1059.  By  defendant,   to  quiet  title  against  plaintiff 

who  sues  for  specific  performance 1765 

5  453.  Answers  1765 

Form  No.  1060.  Denial  of  readiness  to  convey 1765 

Form  No.  1061.  Denial  of  payment  or  tender 1766 

Form  No.  1062.  Demand  after  plaintiff's  tender 1766 

Form  No.  1063.  Denial  of  title I766 

Form  No.  1064.  Denial  of  performance    1766 

Form  No.  1065.  Defense  of  rescission  of  contract  by  agree- 
ment of  the  parties  1767 

Form  No.  1066.  Defenses— (1)  denials,  (2)  inadequate  and  un- 
fair consideration  and  fraudulent  represen- 
tations.— Action  for  specific  performance  of 

contract  to  convey  land  1767 

Form  No.  1067.  Defenses— (1)  that  contract  was  not  fair  or 
reasonable,  (2)  withdrawal  and  rescission  of 
contract. — Action  relating  to  sale  of  mining 

property 1769 

§  454.  Judgments  [or  decrees]   I770 

Form  No.  1068.  For  plaintiff 1770 

Form  No.  1069.  For  defendant 1771 

Form  No.  1070.  Decree  quieting  title  of  cross-complainant  in 
an  action  commenced  by  plaintiff  for  spe- 
cific performance    1771 

I  455.  Annotations    1772 


1756  SPECIFIC  PERFORMANCE.  [Tit.  XVI. 

§450.     CODE  PROVISIONS. 

Specific  and  preventive  relief  generally. 
California,  §  3366.     Specific  or  preventive  relief  may  be  given  as 
provided  by  the  laws  of  this  state.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Montana,  Rev.  Codes  1907,  §  6089.  b  North  Dakota,  Rev.  Codes  1905, 
§  6602.    c  South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2332. 

a  Montana,  §  6089.     Specific  or  preven-  cases  specified  in  this  and  the  following 

tive   relief    may   be   given    in    the   cases  two  articles  and  no  others, 

specified  in  this  title,  and  in  no  others.  c  South  Dakota,  Civ.  Code  §  2332,  same 

b  North      Dakota,     §  6602.     Specific     or  as  Montana  §  6089. 
preventive    relief   may   be   given   in   the 

Specific  relief,  how  given. 
California,  §  3367.     Specific  relief  is  given : 

1.  By  taking  possession  of  a  thing,  and  delivering  it  to  a  claimant ; 

2.  By  compelling  a  party  himself  to  do  that  which  ought  to  be 
done;  or, 

3.  By  declaring  and  determining  the  rights  of  parties,  otherwise 
than  by  an  award  of  damages.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6090.     North  Dakota,  Rev.  Codes  1905,  §  6603. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2333. 

Preventive  relief,  how  given. 
California,   §  3368.     Preventive  relief  is  given  by  prohibiting  a 
party  from  doing  that  which  ought  not  to  be  done.    (Kerr's  Cyc.  Civ. 
Code.) 

For  preventive  relief,  see  Injunctions,  ch.  CXXIII. 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6091.     North  Dakota,  Rev.  Codes  1905,  §  6604. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2334. 

Limitation  upon  specific  and  preventive  relief. 
California,  §  3369.     Neither  specific  nor  preventive  relief  can  be 
granted  to  enforce  a  penal  law,  except  in  a  case  of  nuisance,  nor  to 
enforce  a  penalty  or  forfeiture  in  any  case.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6092.     North  Dakota,  Rev.  Codes  1905,  §  6605 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2335. 


CH.  CXXIX..]  CODE  PROVISIONS.  1757 

Judgment  for  possession  or  title  of  real  property. 
California,  §  3375.  A  person  entitled  to  specific  real  property,  by 
reason  either  of  a  perfected  title,  or  of  a  claim  to  title  which  ought 
to  be  perfected,  may  recover  the  same  in  the  manner  prescribed  by 
the  Code  of  Civil  Procedure,  either  by  a  judgment  for  its  possession, 
to  be  executed  by  the  sheriff,  or  by  a  judgment  requiring  the  other 
parly  to  perfect  the  title,  and  to  deliver  possession  of  the  property. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6093.     North  Dakota,  Rev.  Codes  1905,  §  6606. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2336. 

Remedy  must  be  mutual. 
California,  §  3386.  Neither  party  to  an  obligation  can  be  com- 
pelled specifically  to  perform  it,  unless  the  other  party  thereto  has 
performed,  or  is  compellable  specifically  to  perform,  everything  to 
which  the  former  is  entitled  under  the  same  obligation,  either  com- 
pletely or  nearly  so,  together  with  full  compensation  for  any  want 
of  entire  performance.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6098.     North  Dakota,  Rev.  Codes  1905,  §  661* 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2340. 

Specific  performance  of  unilateral  contracts. 
California,  §  3388.  A  party  who  has  signed  a  written  contract  may 
be  compelled  specifically  to  perform  it,  though  the  other  party  has 
not  signed  it,  if  the  latter  has  performed,  or  offers  to  perform  it  on 
his  part,  and  the  case  is  otherwise  proper  for  enforcing  specific  per- 
formance.    (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6100.     North  Dakota,  Rev.  Codes  1905,  §  6612. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2342. 

Penalty  or  damages  liquidated  not  a  bar. 
California,  §  3389.    A  contract  otherwise  proper  to  be  specificall> 
enforced,  may  be  thus  enforced,  though  a  penalty  is  imposed,  or  th* 
damages  are  liquidated  for  its  breach,  and  the  party  in  default  is 
willing  to  pay  the  same.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6101.     North  Dakota,  Rev.  Codes  1905,  §  6613. 
6outh  Dakota,  Rev.  Codes  1903,  C.  C.  §  2343. 


1758  SPECIFIC  PERFORMANCE.  [Tit.  XVI. 

Obligations  not  specifically  enforceable. 

California,  §  3390.  The  following  obligations  cannot  be  specifically 
enforced : 

1.  An  obligation  to  render  personal  service; 

2.  An  obligation  to  employ  another  in  personal  service ; 

3.  An  agreement  to  submit  a  controversy  to  arbitration ; 

4.  An  agreement  to  perform  an  act  which  the  party  has  not  power 
lawfully  to  perform  when  required  to  do  so ; 

5.  An  agreement  to  procure  the  act  or  consent  of  the  wife  of  the 
contracting  party,  or  of  any  other  third  person;  or. 

6.  An  agreement,  the  terms  of  which  are  not  sufficiently  certain 
to  make  the  precise  act  which  is  to  be  done  clearly  ascertainable. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Hawaii,  Rev.  Laws  1905,  Organic  Act,  §  10.  b  Montana,  Rev.  Codes  1907, 
§  6102.  North  Dakota,  Rev.  Codes  1905,  §  6614.  South  Dakota,  Rev.  Codes 
1903,  C.  C.   §  2344. 

a  Hawaii,    Organic    Act,     §  10.     *     •     •  b  Montana,    §  6102,    substantially    same 

Provided.    That    no    suit    or   proceedings  as  Cal.   Civ.   Code  §  3390,   except  subs.   1 

shall  be  maintained  for  the  specific  per-  and  2  of  Cal.  Civ.  Code  §  3390,  are  both 

formance  of  any  contract  heretofore  or  substantially    included    in    sub.    1,    Mon- 

hereafter  entered  into  for  personal  labor  tana    §  6102;    and    for    sub.    2,    Montana 

or  service,  nor  shall  any  remedy  exist  or  §  6102,  insert,  "2.    An  agreement  to  marry 

be  enforced  for  breach  of  any  such  con-  or  live   with  another." 
tract,   except  in  a  civil  suit  or  proceed- 
ing instituted  solely  to  recover  damages 
for  such  breach.     *     *     * 

Parties  against  whom  specific  performance  cannot  be  enforced. 

California,  §  3391.  Specific  performance  cannot  be  enforced  against 
a  party  to  a  contract  in  any  of  the  following  cases : 

1.  If  he  has  not  received  an  adequate  consideration  for  the  con- 
tract ; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable ; 

3.  If  his  assent  was  obtained  by  the  misrepresentation,  conceal- 
ment, circumvention,  or  unfair  practices  of  any  party  to  whom  per- 
formance would  become  due  under  the  contract,  or  by  any  promise 
of  such  party  which  has  not  been  substantially  fulfilled ;  or, 

4.  If  his  assent  was  given  under  the  influence  of  mistake,  misap- 
prehension, or  surprise,  except  that  where  the  contract  provides  for 
compensation  in  case  of  mistake,  a  mistake  within  the  scope  of  such 


Ch.  CXXIX.]  CODE  PROVISIONS.  175«J 

provision  may  be  compensated  for,  and  the  contract  specifically 
enforced  in  other  respects,  if  proper  to  be  so  enforced.  (Kerr's 
■Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6103.     North  Dakota,  Rev.  Codes  1905,  §  6615. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2345. 

Parties  in  whose  favor  specific  performance  cannot  be  enforced. 

California,  §  3392.  Specific  performance  cannot  be  enforced  in  favor 
of  a  party  who  has  not  fully  and  fairly  performed  all  the  conditions 
precedent  on  his  part  to  the  obligation  of  the  other  party,  except 
where  his  failure  to  perform  is  only  partial,  and  either  entirely  imma- 
terial, or  capable  of  being  fully  compensated,  in  which  case  specific 
performance  may  be  compelled,  upon  full  compensation  being  made 
for  the  default.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6104.     North  Dakota,  Rev.  Codes  1905,  §  6616. 
South   Dakota,  Rev.  Codes  1903,  C.  C.  §  2346. 

Agreement  to  sell  property  by  one  who  cannot  give  title. 
California,  §  3394.    An  agreement  for  the  sale  of  property  cannot 
be  specifically  enforced  in  favor  of  a  seller  who  cannot  give  to  the 
buyer  a  title  free  from  reasonable  doubt.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6106.     North  Dakota,  Rev.  Codes  1905,  §  6617. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2347. 

Relief  against  parties  claiming  under  person  bound  to  perform. 

California,  §  3395.  Whenever  an  obligation  in  respect  to  real 
property  would  be  specifically  enforced  against  a  particular  person, 
it  may  be  in  like  manner  enforced  against  any  other  person  claiming 
under  him  by  a  title  created  subsequently  to  the  obligation,  except  a 
purchaser  or  encumbrancer  in  good  faith  and  for  value,  and  except, 
also,  that  any  such  person  may  exonerate  himself  by  conveying  all 
his  estate  to  the  person  entitled  to  enforce  the  obligation.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6107.     North  Dakota,  Rev.  Codes  1905,  §  6618. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2348. 


jjGO  SPECIFIC  PERFORMANCE.  [Tit.  XVI. 

§451.     COMPLAINTS  [OR  PETITIONS]. 

FORM   No.  1055 — For  specific  performance  of  an  agreement  to  make  a  lease. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  defendant,  being 
owner  in  fee  of  the  following  premises  [describing  the  same],  duly 
executed  an  agreement  with  the  plaintiff,  whereby  he  agreed  to  lease 
the  same,  with  the  appurtenances,  to  the  plaintiff,  for  the  term  of 

years,  from  the  day  of  ,  19     ,  on  the  following 

conditions:    [Set  out  the  same.] 

2.  That  the  plaintiff,  relying  upon  said  agreement,  has  expended 
the  sum  of  $  in  improving  said  premises,  in  this :  [State  what 
improvements  were  made.] 

3.  That  the  plaintiff  has  duly  performed  all  the  conditions  on  his 
part  to  be  performed,  and  has  always  been,  and  still  is,  ready  and 
willing  to  accept  a  lease  of  said  premises,  but  the  defendant  has  failed 
and  refused,  and  still  refuses,  to  execute  a  lease  to  the  plaintiff. 

4.  That  said  contract,  and  the  terms  and  conditions  thereof  afore- 
said, were  and  are  in  all  respects  just  and  fair  and  reasonable  be- 
tween the  parties  thereto. 

Wherefore,  the  plaintiff  demands  judgment,  that  the  defendant  be 

required  to  execute  to  the  plaintiff  a  lease,  according  to  the  terms  of 

said  agreement,  and  for  such  other  relief  as  is  just  and  proper. 

r,T     .„     ,.      n  A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  1056 — For    specific    performance    of    an    agreement    to    exchange 
property. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 
1.  That  on  the  day  of  ,  19     ,  at  ,  the  plaintiff  and 

defendant  entered  into  an  agreement,  in  writing,  of  that  date, 
whereby,  in  consideration  of  the  covenants  on  the  part  of  the  plaintiff 
hereinafter  mentioned,  the  defendant  covenanted  that  he  would,  on 
or  before  the  day  of  ,  19     ,  convey  to  the  plaintiff  in  fee, 

by  warranty  deed,  a  tract  of  land  situated  in  the  county  of  ,  in 

the  state  of  ,  bounded  and  described  as  follows  [giving  descrip- 

tion] ;  in  consideration  whereof,  the  plaintiff  covenanted  in  and  by 
gaid  agreement  to  convey  to  the  defendant  in  fee-simple  a  certain 


Ch.  CXXIX.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1701 

house  and  lot  situate  in  the  city  of  ,  in  this  state,  [describing 

the  same]. 

2.  That  the  plaintiff  duly  performed  all  the  conditions  of  said 
agreement  on  his  part,  and  on  the  day  of  ,  19  ,  at  , 
tendered  to  the  defendant  a  warranty  deed  of  said  premises,  signed 
and  sealed  by  the  plaintiff,  and  demanded  of  him  a  deed  of  said 
premises  in  ;  but  the  defendant  refused  to  execute  and  deliver 
said  or  any  deed  to  the  plaintiff. 

3.  [As  in  paragraph  4,  preceding  form.] 

4.  That  on  the  day  of  ,  19  ,  in  pursuance  o\  said 
agreement,  the  plaintiff  delivered,  and  the  defendant  took,  posses- 
sion of  the  premises  so  to  be  conveyed  to  the  defendant,  and  that 
defendant  has  ever  since  occupied,  and  now  occupies,  the  same. 

Wherefore,  the  plaintiff  prays  judgment,  that  the  defendant  con- 
vey to  the  plaintiff  said  lot  in  ,  pursuant  to  the  contract,  and 

for  the  costs  of  this  action.  „  „        ,  .     .«. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM   No.  1057 — By  vendee,  to  compel  specific  performance  of  contract  to 
convey  real  estate  under  which  possession  was  given. 

(In  Noyes  v.  Schlegel,  9  Cal.  App.  516;  99  Pac.  726.) x 

[Title  of  court  and  cause.] 

Comes  now  the  plaintiff  above  named,  and  for  cause  of  action 
against  the  defendants,  alleges : 

1.  That  on  the  24th  day  of  February,  1904,  the  plaintiff  and  the 
defendant  L.  Schlegel  entered  into  a  certain  contract  and  agree- 
ment, in  writing,  whereby  said  defendant  agreed  to  sell  and  transfer 
to  this  plaintiff  certain  lots,  pieces,  and  parcels  of  land  situate  in  the 
county  of  Los  Angeles,  state  of  California,  and  more  particularly 
described  as  follows,  to  wit :  [Here  follows  description  of  said  prop- 
erty] ,  for  the  sum  of  $625,  gold  coin  of  the  United  States,  payable  in 
instalments  as  provided  in  said  contract.  *  *  *  A  copy  of  the 
said  agreement  of  February  24,  1904,  is  hereunto  attached,  marked 
" Exhibit  A,"  and  made  a  part  hereof. 

l  This  action  involved,  in  addition  to  property  wholly  paid  for,  certain  other  lots 
upon  which  instalments  remained  unpaid.  The  defendant  contended  that  he  was 
released  from  his  obligation  to  convey  because  the  plaintiff  had  failed  to  pay  some 
of  the  instalments  within  the  time  limited  by  the  contract.  The  court  held  that  the 
defendant  had,  by  express  oral  agreement,  and  by  the  acceptance  of  overdue  pay- 
ments, and  in  other  ways,  waived  his  right  to  forfeiture  for  these  defaults  or  delays 
in  payment:    Noyes  v.  Schlegel,  9  Cal.  App.  516,  99  Pac.  726,  727. 


1762  SPECIFIC  PERFORMANCE.  [Tit.  XVI. 

2.  That  thereafter,  and  on  the  12th  day  of  July,  1906,  the  said 
agreement  was  duly  recorded  in  the  office  of  the  county  recorder  of 
the  county  of  Los  Angeles,  in  book  726  of  deeds,  at  page  267  thereof, 
records  of  said  county. 

3.  That  pursuant  to  the  said  agreement  the  plaintiff  went  into  pos- 
session of  the  said  property,  and  is  now  in  possession  thereof,  and 
that  plaintiff  has  made  all  of  the  payments  on  account  of  the  pur- 
chase price  of  [said]  lots  *  *  *  above  described,  provided  in 
the  said  contract  to  be  paid,  together  with  interest  on  said  payments 
as  provided  therein.  That  demand  has  been  made  upon  the  said 
defendant  that  he  execute  and  deliver  to  this  plaintiff  the  deed  of 
conveyance  to  said  lots  *  *  *  pursuant  to  his  said  contract  with 
plaintiff,  but  said  defendant  has  refused,  and  still  refuses,  to  execute 
the  necessary  deed  of  conveyance  to  the  said  property,  and  refuses 
to  carry  out  his  said  agreement  in  reference  to  the  transfer  of  said 
lots  or  either  of  them.  A  copy  of  said  demand  in  writing  so  served 
upon  the  said  defendant  is  hereunto  attached,  marked  "Exhibit  B,'r 
and  made  a  part  of  this  complaint.     *     *     * 

4.  That  the  said  agreement  of  February  24,  1904,  was  and  is  a  just 
and  equitable  contract  as  between  plaintiff  and  said  defendant,  and 
the  price  therein  agreed  to  be  paid  by  the  plaintiff  for  said  lots 
*  *  *  was  the  reasonable  value  thereof  at  the  time  the  said  con- 
tract was  entered  into,  and  the  said  contract,  at  the  time  of  its 
execution,  was,  and  it  now  is,  a  just  and  equitable  and  reasonable 
contract.     *     *     * 

5.  *  *  *  That  the  said  defendant  at  all  times  herein  mentioned 
was,  and  now  is,  the  legal  owner  of  the  title  to  the  said  premises 
above  described,  and  was,  and  now  is,  able  to  transfer  to  the  plaintiff 
a  good  and  sufficient  title  to  the  same;  that  the  defendant  Harriett 
Schlegel  is  the  wife  of  L.  Schlegel,  and  has,  or  claims  to  have,  some 
interest  in  the  said  premises,  and  that  said  interest  is  subject  to  and 
inferior  to  the  rights  of  the  plaintiff  herein ;  that  the  defendants  John 
Doe,  Richard  Roe,  Mary  Doe,  and  Jane  Roe  are  sued  herein  under 
fictitious  names,  because  the  true  names  of  said  defendants  are 
unknown  to  plaintiff ;  that  said  last-named  defendants  have,  or  claim 
to  have,  some  interest  in  the  said  premises  adverse  to  plaintiff,  and 
plaintiff  asks  that  when  their  true  names  are  ascertained  that  he 
may  be  allowed  to  amend  his  complaint  by  inserting  the  same  herein. 

Wherefore,  plaintiff  prays  judgment  and  decree  of  this  court: 


Ch.  CXX1X.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1763 

That  the  defendant  be  required  to  execute  to  this  plaintiff  a  good 
and  sufficient  deed  to  the  said  property  free  and  clear  of  all  encum- 
brances, and  that  upon  a  refusal  to  so  execute  and  deliver  said  deed 
a  commissioner  be  appointed  by  this  court  to  execute  such  deed,  and 
that  such  transfer  shall  operate  as  a  transfer  to  plaintiff  of  said 
premises;  *  *  *  that  it  be  adjudged  and  decreed,  that  plaintiff 
is  the  owner  in  fee-simple  of  the  said  premises,  free  and  clear  of  all 
encumbrances,  and  that  defendants  and  each  of  them  be  restrained 
and  enjoined  from  asserting  any  right,  title,  or  interest  therein  or 
thereto;  and  for  such  other  and  further  relief  as  may  be  just  and 

equitable,  and  for  costs.  T^  .  _,  ,,. 

Kemp  &  Collier, 

[Verification.]  Attorneys  for  plaintiff. 

FORM    No.   1058 — Against   administrator  of  vendor's   estate,  for  specific   per- 
formance of  contract  made  with  decedent. 

(In  Carr  v.  Howell,  154  Cal.  372;  97  Pac.  885.) 
[Title  of  court  and  cause.] 

Now  comes  the  plaintiff  in  the  above-entitled  action,  and  com- 
plaining of  the  defendant,  for  cause  of  action  alleges : 

1.  That  Lelia  Dwyer  died  at  the  city  of  New  Orleans,  in  the  state 
of  Louisiana,  on  or  about  the  22d  day  of  June,  1905,  and  was  at  the 
time  of  her  death  a  resident  of  the  said  city  and  state,  but  left  real 
property  situated  in  the  city  of  Los  Angeles,  county  of  Los  Angeles, 
state  of  California. 

2.  That  the  said  Lelia  Dwyer  left  a  will,  and  prior  to  the  8th  day  of 
August,  1905,  the  defendant,  Wesley  Clark,  presented  his  petition  to 
this  court,  praying  that  the  said  will  be  admitted  to  probate,  and 
that  he,  the  said  Wesley  Clark,  be  appointed  administrator  of  the 
estate  of  the  said  Lelia  Dwyer  with  the  will  annexed,  and  such  pro- 
ceedings were  had  upon  the  said  petition  in  this  court  that  on  the 
8th  day  of  August,  1905,  an  order  was  duly  given  and  made  in  this 
court  and  in  the  said  proceedings,  admitting  the  said  instrument  to 
probate,  and  appointing  the  said  defendant,  Wesley  Clark,  adminis- 
trator of  the  estate  with  the  will  annexed,  and  the  said  Wesley  Clark 
did  thereafter,  and  on  the  9th  day  of  August,  1905,  duly  qualify  as 
such  administrator  by  giving  the  bond  and  taking  the  oath  required 
by  law,  and  thereupon  letters  of  administration  of  the  estate  of  the 
said  Lelia  Dwyer  with  the  will  annexed  were  duly  issued  to  him,  said 


1764  SPECIFIC  PERFORMANCE.  [Tit.  XVI. 

Wesley  Clark,  and  he,  the  said  Wesley  Clark,  ever  since  has  been, 
and  now  is,  the  duly  appointed,  qualified,  and  acting  administrator 
with  the  will  annexed  of  the  said  Lelia  Dwyer,  deceased. 

3.  That  during  the  lifetime  of  the  said  Lelia  Dwyer,  and  on  or 
about  the  4th  day  of  March,  1905,  she  was  the  owner  of  the  following- 
described  parcel  of  land :  [Here  follows  description  of  land]  ;  and 
that  she  died  seized  of  the  said  land  (subject  to  the  written  agree- 
ment hereinafter  set  out).     *     *     * 

4.  That  on  or  about  the  4th  day  of  March,  1905,  plaintiff  and 
defendant  entered  into  *  *  *  a  certain  agreement,  in  writing, 
which  agreement  was  and  is  in  words  and  figures  following,  to  wit : 
[Here  the  said  agreement  is  set  out.]     *     *     * 

5-8.  Plaintiff  further  alleges  that  he  paid  to  the  said  Lelia  Dwyer, 
upon  and  under  and  in  pursuance  of  said  contract,  the  said  sum  of: 
$1,000,  as  part  payment  for  said  tract  of  land,  as  recited  in  said 
agreement;  and  prior  to  the  13th  day  of  May,  1905,  to  wit,  on  the 
26th  day  of  April,  1905,  plaintiff  offered  to  pay  unto  the  said  Lelia 
Dwyer,  and  tendered  to  her,  *  *  *  the  further  sum  of  $9,000, 
in  cash,  and  did  at  the  same  time  offer  to  deliver  the  six  promissory 
notes  signed  by  the  plaintiff,  each  in  the  sum  of  $15,000,  due  respect- 
ively on  or  before  one,  two,  three,  four,  five,  and  six  years,  payable 
to  the  said  Lelia  Dwyer,  or  her  order,  [etc.,  stating  the  offer  to  per- 
form the  remaining  conditions  of  the  contract  on  the  part  of  the 
plaintiff  to  be  performed]  ;  *  *  *  that  plaintiff  then  and  there 
was,  and  ever  since  has  been,  and  now  is,  able,  ready,  and  willing, 
and  now  offers,  to  pay  all  sums  of  money  by  him  to  be  paid  under 
the  terms  of  the  said  written  agreement  and  to  deliver  the  notes  and 
mortgage  required  thereby  to  the  said  defendant  upon  the  execution 
of  the  deed  of  conveyance  to  the  plaintiff  as  provided  in  the  said 
agreement  [etc.]  ;  *  *  *  but  the  said  Lelia  Dwyer  failed  and 
refused  and  neglected  to  [accept  said  tender]  or  deliver  such  con- 
veyance. 

9.  [Here  follows  averment  as  to  tender  made  to  the  representative 
after  his  appointment  and  qualifying  aforesaid.] 

10.  Plaintiff  further  avers  that  the  said  sums  of  money  agreed  by 
him  to  be  paid  for  the  said  property  as  in  the  said  contract  of  March 
4,  1905,  set  forth,  and  amounting  altogether  to  the  sum  of  $100,000, 


Os  CXXTX.J  CROSS-COMPLAINT,  ANSWERS.— FORMS.  X765 

was  the  full  and  fair  value  of  the  said  property  at  the  time  the  said 
contract  was  made.     *     *     * 

Wherefore,  [etc.,  following  with  the  prayer]. 

John  S.  Chapman,  and 
Barker  &  Bowen, 
[Verification.]  Attorneys  for  plaintiff. 

§452.     CROSS-COMPLAINT  [OR  CROSS-PETITION]. 

FORM   No.  1059 — By  defendant,  to  quiet  title  against  plaintiff  who  sues  for 
specific  performance. 

(In  Gish  v.  Ferrea,  10  Cal.  App.  53;  101  Pac.  27.)1 
[Title  of  court  and  cause.] 

Defendant,  J.  P.  LeFevre,  files  this  his  cross-complaint  against 
Mary  F.  Gish,  and  alleges  : 

1.  That  cross-complainant,  J.  P.  LeFevre,  is  now,  and  for  a  long 
time  has  been,  the  owner,  and  entitled  to  the  possession,  of  that  cer- 
tain piece  or  parcel  of  land  situate,  lying,  and  being  in  the  city  and 
county  of  San  Francisco,  state  of  California,  and  bounded  and 
described  as  follows,  to  wit :  [Here  follows  description  of  said  prop- 
erty.] 

2.  That  said  Mary  F.  Gish  claims  and  asserts  an  interest  therein 
adverse  to  cross-complainant,  and  that  the  said  claim  of  said  Mary  F. 
Gish  is  without  any  right  whatever,  and  that  said  Mary  F.  Gish  has 
no  estate,  right,  title,  or  interest  whatever  in  said  land  or  premises, 
or  any  part  thereof. 

[Concluding  part  as  in  actions  to  quiet  title  generally.] 

§453.     ANSWERS. 

FORM   No.  1060 — Denial  of  readiness  to  convey. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  the  plaintiff  was  ready  or  willing  to  convey  the  prem- 
ises as  alleged,  or  at  all;  but  [state  refusal  or  inability  to  convey 
according  to  the  fact]. 

[Etc.] 

l  The  cross-complaint  In  Gish  v.  Ferrea,  eupra,  was  filed  with  the  answer,  the 
latter  containing  a  specific  denial  of  the  averments  of  the  complaint,  the  action 
being  for  specific  performance. 

Tury's  PI.— 112. 


1766  SPECIFIC  PERFORMANCE.  [Tit.  XVI> 

FORM   No.  1061 — Denial  of  payment  or  tender. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 
Denies  that  the  plaintiff  has  ever  paid  or  tendered  to  the  defend- 
ant $  ,  the  residue  of  the  purchase  money  agreed  to  be  paid. 
[Etc.] 

FORM   No.  1062 — Demand  after  plaintiff's  tender. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  r 

That  after  the  making  of  the  tender  alleged,  and  on  the  day 

of  ,  19     ,  at  ,  the  defendant  requested  the  plaintiff  to 

pay  him  said  sum,  but  the  plaintiff  then  and  ever  since  refused  to- 
pay  the  same. 

[Etc.] 

FORM   No.  1063— Denial  of  title. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  r 
Denies  that  the  plaintiff  was  at  the  time  mentioned,  or  that  at  any 
time  since  has  been,  seized  of  an  estate  in  fee-simple  in  said  premises 
[or  any  estate  therein],  and  avers  in  this  connection  that  plaintiff 
could  not  make  or  procure  to  be  conveyed  a  good  and  sufficient  title 
[or  any  title]  thereto  to  defendant,  free  and  clear  of  encumbrances, 
as  he  had  covenanted  to  make  by  his  agreement  with  the  defendant 
herein. 


FORM   No.  1064 — Denial  of  performance. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

Denies  that  said  took  possession  of  the  said  premises,  or 

made  the  said  improvements  thereon  alleged,  or  any  improvements 

thereon,  or  that  defendant  has  in  any  manner  performed  the  said  co«- 

tract  on  his  part. 


Ch.  CXXIX.]  ANSWERS.— FORMS.  1767 

FORM  No.  1065 — Defense  of  rescission  of  contract  by  agreement  of  the 
parties. 

[Title  of  court  and  cause.] 

The  defendant  answers  to  the  plaintiff's  complaint  [or  petition]  : 

That  after  the  making  of  the  contract  alleged,  and  before  any 
breach  of  the  same,  to  wit,  on   [or  about]   the  day  of  , 

19  ,  it  was  agreed  by  and  between  the  plaintiff  and  the  defendant 
that  said  contract  should  be  waived,  abandoned,  and  rescinded ;  and 
they  then  waived,  abandoned,  and  rescinded  the  same  accordingly. 

[Etc.] 

FORM  No.  1066 — Defenses — (1)  denials,  (2)  inadequate  and  unfair  consid- 
eration and  fraudulent  representations. — Action  for  spe- 
cific performance  of  contract  to  convey  land. 

(In  Cummings  v.  Roeth,  10  Cal.  App.  144;  101  Pac.  434.) 

[Title  of  court  and  cause.] 

Come  now  the  defendants,  and  for  answer  to  plaintiff's  complaint, 
allege  and  deny  as  follows,  to  wit : 

Defendants  deny  that  on  the  26th  day  of  March,  1906,  plaintiff, 
Annie  E.  Cummings,  and  defendant  George  Roeth  entered  into  an 
agreement,  in  writing,  whereby  said  Roeth  agreed  to  sell  to  said 
Annie  E.  Cummings  the  aforesaid  property  in  plaintiff's  complaint 
herein  described,  or  to  execute  or  deliver  to  her  a  deed  thereof,  con- 
veying the  same  to  her  free  and  clear  of  all  encumbrances  thereon,  in 
consideration  of  the  sum  of  $20,000,  in  gold  coin  of  the  United  States, 
to  be  paid  to  him,  and  the  delivering  and  assignment  to  him,  the  said 
George  Roeth,  of  forty  bonds  of  $1,000  each  of  the  American  Mag- 
nesite  Company,  a  corporation,  or  that  said  money  and  bonds  said 
Annie  E.  Cummings  therein  agreed  to  pay,  or  transfer  or  deliver,  to 
said  Roeth  therefor,  or  that  said  money  and  said  bonds  were  then 
and  there  a  full  or  adequate  consideration  or  price  for  said  prop- 
erty; or  that  said  contract  was  in  all  respects  or  at  all  just  or  reason- 
able; and  in  this  connection  defendants  allege  that  said  forty  bonds 
were  not  of  the  value  of  $1,000  each,  or  of  any  market  value,  and 
would  not  be  of  any  value  whatever  to  defendants;  and  defendants 
allege  that  $20,000  is  not  a  fair,  or  full,  or  adequate  consideration  for 
said  land  and  premises. 

[Here  follow  other  denials  of  the  averments  of  the  complaint  con- 
forming to  the  defense  made.] 


1768  SPECIFIC  PERFORMANCE.  [Tit.  XVI. 

[Defense  of  inadequate  and  unfair  consideration  and  of  fraudulent  representa- 
tions.] 

For  a  further  and  separate  answer  to  plaintiff's  amended  com- 
plaint herein,  defendants  allege : 

1.  Defendants,  upon  their  information  and  belief,  allege  that  the 
bonds  of  the  American  Magnesite  Company  are  not  worth  their  par 
value,  and  are  of  very  little  or  no  value,  and  are  of  a  value,  if  any, 
not  exceeding  $100  per  bond. 

2.  Defendants  allege  that  on  said  26th  day  of  March,  1906,  plaint- 
iff represented  that  the  bonds  of  said  American  Magnesite  Company 
covered  property  known  as  the  Kose  Brick  Company,  whereas,  in 
truth  and  in  fact,  on  said  26th  day  of  March,  1906,  said  bonds  of  the 
American  Magnesite  Company  did  not  cover  or  include  the  Rose 
Brick  Company  or  any  part  thereof. 

3.  That  on  said  26th  day  of  March,  1906,  plaintiff  represented  that 
the  bonds  of  said  American  Magnesite  Company  were  of  their  face 
value,  that  is  to  say,  of  the  value  of  $1,000  per  bond,  whereas,  in 
truth  and  in  fact,  on  said  26th  day  of  March,  1906,  or  at  any  time 
since  said  date,  said  bonds  have  not  been  of  any  value  other  than 
$100  per  bond,  and  that  they  are  not  marketable  at  $100  per  bond, 
or  at  any  value  whatever,  and  their  value  is  not  capable  of  any 
pecuniary  estimation. 

4.  Defendants,  upon  their  information  and  belief,  allege  that  the 
plaintiff  is,  by  fraud  and  false  representation,  endeavoring  to  force 
defendants  to  convey  said  premises  to  plaintiff  for  an  inadequate  and 
unjust  consideration,  to  wit,  the  sum  of  $20,000,  and  that  the  pre- 
tended forty  bonds  of  the  American  Magnesite  Company  are  of  no 
value,  and  do  not  form  any  part  of  the  consideration  for  the  convey- 
ance of  said  property. 

Wherefore,  defendants  pray  that  plaintiff  take  nothing  by  this, 
her  said  action,  and  that  defendants  may  have  judgment  for  costs, 
and  for  such  other  and  further  relief  in  the  premises  as  may  seem 

just. 

"Welles  Whitmore, 
[Verification.]  Attorney  for  defendants. 


Ch.  CXXIX.]  ANSWERS.— FORMS.  1769 

FORM  No.  1067 — Defenses — (1)  that  contract  was  not  fair  or  reasonable, 
(2)  withdrawal  and  rescission  of  contract. — Action  relat- 
ing to  sale  of  mining  property. 

(In  Mitchel  v.  Gray,  9  Cal.  App.  423;  97  Pac.  160.) 
[Title  of  court  and  cause.] 

Now  comes  the  defendant  and  answers  to  the  complaint  of  plaint- 
iffs herein,  as  follows: 

1.  Defendant  admits  that  upon  July  21,  1905,  plaintiff  George  G. 
Skillen  was  the  owner  of  the  Lanky  Bob  quartz-mine,  described  in 
plaintiff's  complaint,  and  upon  that  date  executed  a  contract,  a  copy 
of  which  is  set  out  in  said  complaint,  and  marked  "Exhibit  A." 

2.  Defendant  denies  that  there  was  or  is  any  consideration,  ade- 
quate or  otherwise,  for  said  agreement;  and  denies  that  said  agree- 
ment is  or  was  in  all  respects  fair  or  reasonable,  or  in  any  respect 
fair  or  reasonable. 

3.  Defendant  denies  that  plaintiff  Charles  E.  Mitchel  has  complied 
with  all  or  any  of  his  covenants  under  said  agreement,  said  exhibit 
A;  denies  that  said  Mitchel  paid  the  first  payment  or  any  payment 
to  plaintiff  George  G.  Skillen,  provided  for  in  said  agreement ;  denies 
that  said  agreement  was,  at  the  commencement  of  this  action,  or  at 
any  other  time,  in  full  force  or  effect,  or  that  the  said  contract  ever 
had  at  any  time  any  force  or  effect  whatever. 

4.  [Here  follow  particular  averments  and  denials  in  support  of 
said  defenses:]  *  *  *  That  on  or  about  October  5,  1905,  and 
prior  to  any  tender  to  him  by  plaintiff  Mitchel  thereunder,  said  Skil- 
len notified  said  Mitchel  that  he  revoked  and  rescinded  said  agree- 
ment, exhibit  A,  and  withdrew  from  said  Mitchel  all  authority  to 
sell  said  Lanky  Bob  mine,  such  notice  being  in  writing  and  as  fol- 
lows: 

To  Charles  A.  Mitchel:  You  are  hereby  notified  that  I  withdraw  the  option  here- 
tofore given  you,  July  21st,  1905,  for  the  purchase  of  the  Lanky  Bob  quartz-mining 
claim,  situated  in  Liberty  Mining  District,  county  of  Siskiyou,  state  of  California. 
I  have  concluded  to  make  other  arrangements  and  not  to  wait  any  longer. 

Dated  October  5th,  1905.  George  G.  Skillen. 

"Wherefore,  defendant  prays  that  said  action  be  dismissed  and  for 
his  costs  herein  incurred. 

R.  S.  Taylor, 
Attorney  for  defendant. 


1770  SPECIFIC  PERFORMANCE.  [Tit.  XV!. 

§454.     JUDGMENTS   [OR  DECREES]. 
FORM    No.   1068— For  plaintiff. 

(In  Noyes  v.  Schlegel,  9  Cal.  App.  516 ;  99  Pac.  726.) 

This  cause  coining  on  regularly  for  trial  on  the  6th  day  of  January, 
1308,  before  the  court,  without  a  jury,  a  jury  having  been  expressly 
waived,  John  W.  Kemp  appearing  as  attorney  for  the  plaintiff,  and 
Frank  M.  Porter  and  Trusten  P.  Dyer  appearing  as  attorneys  for  the 
defendants,  oral  and  documentary  evidence  was  introduced  on 
behalf  of  the  plaintiff  and  the  defendants,  and  the  same  having  been 
closed,  the  court  files  its  findings  and  decisions  in  writing,  and  orders 
judgment  in  favor  of  the  plaintiff.  Wherefore,  by  reason  of  the  law, 
and  the  findings  aforesaid : 

It  is  hereby  ordered,  adjudged,  and  decreed,  that  the  plaintiff, 
L.  B.  Noyes,  is  the  owner  in  fee-simple,  and  entitled  to  a  conveyance 
of  lots  [here  described],  and  that  the  defendant  be  and  he  is  hereby 
required  to  execute  and  deliver  to  the  plaintiff  a  good  and  sufficient 
deed  to  the  said  property,  conveying  the  same  to  the  plaintiff  free 
and  clear  of  all  encumbrances. 

[It  is  further  ordered,  adjudged,  and  decreed,  that  upon  the  pay- 
ment to  the  said  defendant  of  the  sum  of  $625  by  the  plaintiff  herein, 
that  the  defendant  execute  and  deliver  to  the  plaintiff  a  good  and 
sufficient  deed  of  conveyance,  conveying  to  the  plaintiff  lots  (here 
other  lots  involved  in  the  action  are  described)  free  and  clear  of  all 
encumbrances.] 

It  is  further  ordered,  adjudged,  and  decreed,  if  the  said  L.  Schlegel 
shall  fail,  refuse,  and  neglect  to  make  such  conveyance,  that  the  clerk 
of  this  court  be  and  he  is  hereby  appointed  a  commissioner  to  exe- 
cute such  deed  or  deeds,  and  that  such  transfer  when  made  by  such 
clerk  appointed  as  such  commissioner  shall  operate  as  a  transfer  to 
plaintiff  of  the  said  premises. 

It  is  further  ordered,  adjudged,  and  decreed,  that  upon  the  pay- 
ment of  the  said  sum  of  $625  as  aforesaid,  and  upon  the  execution  of 
the  said  deed  of  conveyance  by  defendant,  or  in  lieu  thereof  by  the 
clerk  of  this  court  as  hereinbefore  provided,  the  defendant  be  and  he 
is  hereby  restrained  and  enjoined  from  thereafter  asserting  any 
right,  title,  or  interest  in  or  to  any  of  the  property  described  in 
plaintiff's  complaint. 

It  is  further  ordered,  adjudged,  and  decreed,  that  the  plaintiff  do 


Ch.  CXXIX.]  JUDGMENTS    [OR   DECREES].— FORMS.  1771 

have  and  recover  of  the  defendant  L.  Sehlegel  his  necessary  costs  and 
disbursements  incurred  in  this  action,  taxed  at  $34.60. 
Dated  this  20th  day  of  January,  1908. 

George  H.  Hutton, 
Judge  of  Superior  Court. 

FORM   No.  1069— For  defendant. 

(In  Cummings  v.  Roeth,  10  Cal.  App.  144;  101  Pac.  434.) 
[Title  of  court  and  cause.] 
[After  preliminary  recitals:] 

Wherefore,  by  reason  of  the  law  and  by  the  findings  aforesaid,  it 
is  by  the  court  hereby  ordered,  adjudged,  and  decreed,  that  plaint- 
iff take  nothing  by  her  action  herein  against  the  defendants,  or 
either  of  them,  and  that  defendants  do  have  and  recover  of  and 
from  the  plaintiff  their  costs  and  disbursements  incurred  herein, 
amounting  to  the  sum  of  $69. 

Judgment  entered  this  4th  day  of  September,  1907. 

John  P.  Cook,  Clerk. 
By  A.  A.  Rogers,  Deputy  Clerk. 

FORM   No.  1070 — Decree  quieting  title  of  cross-complainant  in  an  action  com- 
menced by  plaintiff  for  specific  performance. 

(In  Gish  v.  Ferrea,  10  Cal.  App.  53;  101  Pac.  27.) 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  to  be  heard  on  the  21st  day  of 
August,  1907,  H.  D.  Newhouse  appearing  for  plaintiff,  and  Berry  & 
Brady  appearing  for  defendants,  and  for  cross-complainant,  J.  P. 
LeFevre. 

The  court  having  heard  all  the  evidence  and  proofs  produced 
herein,  and  having  considered  the  same,  and  being  fully  advised  in 
the  premises,  and  it  appearing  therefrom  that  during  the  month  of 
September,  1905,  defendant  Virginia  Ferrea  was  the  owner,  in  pos- 
session of,  and  entitled  to  the  possession  of,  that  certain  lot  [here 
follows  description  of  said  property]. 

That  on  or  about  the  9th  day  of  February,  1906,  by  mesne  convey- 
ances, the  said  property  was  sold  to  defendant  J.  P.  LeFevre,  who 
was  also  the  cross-complainant  herein,  and  that  the  said  J.  P.  Le- 
Fevre now  is,  and  ever  since  said  9th  day  of  February,  1906,  has 
been,  the  owner  in  fee-simple  and  entitled  to  the  possession  of  the 


1772  SPECIFIC  PERFORMANCE.  [Tit.  XVI. 

said  lot,  piece,  and  parcel  of  land,  together  with  the  improvements 
thereon ;  that  the  claim  of  Mary  F.  Gish  in  and  to  the  said  property 
is  without  any  right  whatever,  and  that  the  said  Mary  F.  Gish  has 
no  estate,  right,  title,  or  interest  in  or  to  said  land  or  premises  or  in 
any  part  thereof. 

It  is  therefore  hereby  ordered,  adjudged,  and  decreed,  that  defend- 
ants herein  have  judgment  for  their  costs  in  this  action,  and  that 
plaintiff  take  nothing  by  said  action. 

It  is  further  ordered,  adjudged,  and  decreed,  that  J.  P.  LeFevre, 
the  cross-complainant  herein,  is  the  owner  in  fee-simple  absolute  of 
the  above-described  premises  and  every  part  thereof,  and  the  im- 
provements thereon,  and  that  Mary  F.  Gish  has  no  estate  or  interest 
in  or  to  said  premises  or  any  part  thereof,  or  the  improvements 
thereon,  and  that  the  said  Mary  F.  Gish  be  forever  debarred  from 
asserting  any  claim  whatever  in  or  to  said  land  or  premises  or  any 
part  thereof,  or  the  improvements  thereon,  adverse  to  the  interest  of 
cross-complainant,  J.  P.  LeFevre. 

Let  judgment  be  entered  accordingly. 

Done  in  open  court,  this  15th  day  of  April,  1908. 

J.  M.  Seawell,  Judge. 

§455.     ANNOTATIONS. — Specific  performance. 

1,  2.  Mutuality  of  remedy. 

3.  Limitations  of  the  remedy. — Reference. 

4.  Agreement  to  give  personal  services  not  enforceable  specifically. 

5.  Contract  to  enforce  transfer  of  corporation  stock. 

6.  Contract  for  return  of  stock. — When  enforceable. 

7.  Party  can  not  both  rescind  and  affirm. 

8.  Action  in  personam. 

9.  Right,  when  negatived  by  the  bill  itself. 
10.  Joinder  with  action  for  damages. 

11,  12.  Essential  averments. — Complaint  deficient. 
13-15.  Adequate  consideration  must  be  shown. 

16.  Distinction  as  between  executed  and  executory  contracts. 

17.  Contracts  must  be  equitable. 

18-21.  Fairness  of  contract  must  affirmatively  appear. 

22.  Bill  in  equity  to  redeem  personal  property. 

23.  Tender. — When  unnecessary  to  plead. 

24.  Prayer  for  alternative  relief. 

1.  Mutuality  of  remedy. — Equity  will  conditions  of  the  contract  upon  which 
not  enforce  a  contract  where  there  is  he  relies:  Coonrod  v.  Studebaker,  53 
want   of    mutuality    in    reference    to    the       Wash.  32,  101  Pac.  489,  490. 

remedy  sought  to  be  enforced:    Los  An-  3.   Limitations   of   the   remedy   of   spe- 

geles  &  B.  O.  &  D.  Co.  v.  Occidental  Oil  cific  performance  of  contracts:    See  Tur- 

Co.,   144  Cal.   528,  532,  78  Pac.   25.  ley  v.  Thomas  (Nev.),  101  Pac.  568,  574- 

2.  Specific   performance   of   a   contract  579. 

can   not   be   enforced   by   a  party  unless  4.  Agreement  to  give  personal  services 

he    himself   is   able    to   comply   with    the       not   enforceable   specifically. — Agreement 


Ch.  CXX1X.] 


ANNOTATIONS. 


1773 


of  a  daughter  to  support  and  give  per- 
sonal care  and  attention  to  her  mother 
during  the  remainder  of  her  life  in  con- 
sideration of  receiving  from  the  mother 
a  deed  of  certain  property  can  not  be 
sipecifically  enforced  by  the  mother: 
Grimmer  v.  Carlton,  93  Cal.  189,  194,  28 
Pac.  1043,  27  Am.  St.  Rep.  171.  See 
Cooper  v.  Pena,  21  Cal.  403;  King  v. 
Gildersleeve,  79  Cal.  504,  509,  21  Pac.  961. 

5.  Contract  to  enforce  transfer  of  cor- 
poration stock. — A  corporation  is  not  a 
necessary  party  defendant  in  an  action 
against  a  stockholder  to  specifically  en- 
force a  contract  to  transfer  stock  to  the 
plaintiff  and  to  compel  him  to  account 
for  and  pay  over  dividends,  although  it 
is  not  improper  to  make  the  corporation 
a  defendant:  Say  ward  v.  Houghton,  82 
Cal.   628,   630,   23   Pac.   120. 

6.  Contract  for  return  of  stock. — When 
enforceable.  —  Specific  performance  of 
contract  for  return  of  stock  in  corpora- 
tion pledged  as  security  for  debt  may 
be  enforced  by  the  pledgeor  upon  pay- 
ment or  tender  of  the  amount  of  the  in- 
debtedness where  the  stock  has  no  mar- 
ket value  and  where  no  other  shares  of 
such  corporation  are  in  the  market  for 
sale:  Krouse  v.  Woodward,  110  Cal.  638, 
642,  42  Pac.  1084.  See  Senter  v.  Davis, 
38  Cal.  450;  Adams  v.  Messinger,  147 
Mass.  185,  17  N.  E.  491,  9  Am.  St.  Rep. 
679;  Cushman  v.  Thayer  Mfg.  Co.,  76  N. 
Y.  365,  32  Am.  Rep.  315;  Johnson  v. 
Brooks,  93  N.  T.  337,  342. 

7.  Party  can  not  both  rescind  and  af- 
firm.—A  party  can  not,  while  he  re- 
tains the  benefit  of  a  substantial  per- 
formance, totally  defeat  an  action  for 
the  price  which  he  has  agreed  to  pay,  or 
for  specific  performance  on  his  part,  on 
the  ground  that  the  plaintiff  has  not 
completed  the  contract.  He  can  not  at 
the  same  time  affirm  the  contract  by  re- 
taining its  benefits  and  rescind  it  by  re- 
pudiating its  burdens:  German  Sav. 
Inst.  v.  DeLaVergne  R.  M.  Co.,  70  Fed. 
146,  17  C.  C.  A.  34,  cited  in  Turley  v. 
Thomas,  31  Nev.  181,  101  Pac.  568,  573. 

8.  Action  in  personam. — An  action  for 
specific  performance  of  a  contract  to 
convey  real  estate  is  one  in  personam: 
Silver  Camp  Mining  Co.  v.  Dickert,  31 
Mont.  488,  78  Pac.  967,  67  L.  R.  A.  940, 
3  Am.  &  Eng.  Ann.  Cas.  1000;  Close  v. 
Wheaton,  65  Kan.  830,  70  Pac.  891. 

9.  Right,  when  negatived  by  the  bill 
Itself. — Where     the     complaint     affirma- 


tively shows  that  the  defendant  is  un- 
known to  plaintiff,  the  right  to  specific 
relief  is  negatived  by  the  bill  itself: 
Bell  v.  Bank  of  California,  153  Cal.  234, 
239,  94  Pac.  889,  citing  Columbine  v. 
Chichester,  2  Phila.  27;  Roanoke  St.  R. 
Co.  v.  Hicks,  96  Va.  510,  32  S.  E.  295. 

10.  Joinder  with  action  for  damages. 
— The  distinction  in  the  English  courts 
between  an  equitable  action  for  specific 
performance  and  an  action  for  damages 
triable  only  in  a  court  of  law  is  gener- 
ally abolished  by  statute.  Under  the 
code,  the  plaintiff  may  join  an  action 
for  specific  performance  with  an  action 
for  damages  upon  the  principle  that  he 
is  entitled  to  relief  in  damages  where 
the  specific  relief  can  not  be  granted: 
Huey  v.  Starr,  79  Kan.  781,  101  Pac. 
1075,  104  Pac.  1135,  citing  Civ.  Code, 
§10,  Gen.  Stats.  1901,  §4438;  Henry  v. 
McKittrick,  42  Kan.  485,   22  Pac.   576. 

11.  Essential  averments. — Under  sec- 
tion 3391  of  the  Civil  Code  of  California, 
the  complaint  in  an  action  by  a  vendor 
against  a  vendee  for  the  specific  per- 
formance of  an  executory  agreement  for 
the  sale  of  land,  must  affirmatively 
show,  first,  that  the  vendee  has  received 
an  adequate  consideration  for  the  con- 
tract, and,  second,  that  the  contract  is, 
as  to  him,  just  and  reasonable.  Where 
the  complaint  is  lacking  in  these  es- 
sentials it  is  insufficient:  White  v.  Sage, 
139  Cal.  613,  87  Pac.  193. 

12.  Complaint  deficient  In  essential 
averments. — A  complaint  in  an  action  to 
enforce  specific  performance  of  contract 
by  the  vendor  in  an  executory  agree- 
ment for  the  sale  of  land,  is  insufficient 
where  there  is  no  allegation  whatever 
as  to  the  value  of  the  land,  nor  any 
averment  that  the  price  was  adequate 
or  in  fair  proportion  to  the  value  of  the 
land,  nor  that  the  defendant  ever  had 
possession  of  the  land,  nor  of  any  other 
facts  going  to  show  that  the  considera- 
tion of  the  contract  of  the  defendant  to 
buy  the  land  was  adequate,  or  that,  as 
to  him,  it  was  just  and  reasonable.  A 
court  of  equity  can  not  enforce  specific 
performance  where  the  complaint  is 
lacking  in  these  essentials:  White  v. 
Sage,   149  Cal.  613,  87  Pac.   193. 

13.  Adequate  consideration  must  be 
shown. — In  an  action  for  the  specific 
performance  of  a  contract  for  the  sale 
of  lands,  it  is  necessary  to  allege  and 
show   to   the  court  an   adequate   consid- 


1774 


SPECIFIC  PERFORMANCE. 


[Tit.  XVI. 


eration  for  the  performance  of  the  con- 
tract sought  to  be  enforced:  Nicholson 
v.  Tarpey,  70  Cal.  608,  12  Pac.  778; 
Arguello  v.  Bours,  67  Cal.  447,  8  Pac. 
49;  Windsor  v.  Miner,  124  Cal.  492,  57 
Pac.  386;  Kiger  v.  McCarthy  Co.,  10  Cal. 
App.  308,  101  Pac.  928,  929. 

14.  Specific  performance  will  not  be 
decreed  under  section  3391  of  the  Cali- 
fornia Civil  Code  unless  there  is  ade- 
quate consideration:  Morrill  v.  Everson, 
77  Cal.  114,  19  Pac.  190;  Flood  v.  Tem- 
pleton,  148  Cal.  374,  83  Pac.  148. 

15.  A  complaint  to  enforce  specifically 
a  contract  for  the  purchase  of  real  es- 
tate, but  which  fails  to  allege  adequacy 
of  consideration  for  the  purchase,  may 
nevertheless  be  deemed  good  as  an  ac- 
tion for  damages  for  the  breach  of  the 
contract  set  forth  in  the  complaint,  and 
the  full  relief  sought,  except  specific 
performance,  may  be  awarded  there- 
under: Kiger  v.  McCarthy  Co.,  10  Cal. 
App.  308,  101  Pac.  928,  929. 

16.  Distinction  as  between  executed 
and  executory  contracts. — A  distinction 
as  to  the  rule  is  made  between  executed 
and  executory  contracts.  "Where  the 
parties  to  an  executed  contract  have 
knowingly  and  deliberately  fixed  upon 
the  price,  however  great  or  small,  there 
is  no  occasion  for  interference  by  a 
court;  for  owners  have  the  right  to  sell 
their  property  for  what  they  please,  and 
purchasers  have  a  right  to  pay  what 
they  please:  Harris  v.  Tyson,  24  Pa. 
347,  64  Am.  Dec.  661;  Davidson  v.  Little, 
22  Pa.  245,  247,  60  Am.  Dec.  81. 

17.  Contracts  must  be  equitable. — Con- 
tracts perfectly  valid,  free  from  fraud 
or  mistake,  may,  nevertheless,  be  de- 
nied specific  performance,  if  harsh,  un- 
just, and  unfair.  And  this  doctrine  ap- 
plies equally  to  vendor  and  vendee: 
White  v.  Sage,  149  Cal.  613,  87  Pac.  193; 
Cummings  v.  Roeth,  10  Cal.  App.  144,  101 
Pac.  434,  437. 

18.  Fairness  of  contract  must  affirm- 
atively appear. — In  a  suit  for  specific 
performance,  it  must  be  affirmatively 
shown  that  the  contract  is  fair  and 
iust,  and  that  it  would  not  be  inequita- 
ble to  enforce  it:  Agard  v.  Valencia,  39 
Cal.  292,  302;  Newman  v.  Freitas,  129 
Cal.  283,  288,  61  Pac.  907,  50  L.  R.  A. 
548;  Sharp  v.  Bowie,  142  Cal.  462,  467, 
76  Pac.  62. 

19.  A  complaint  for  specific  perform- 
ance,  in  order  to  make  out  a  case  good 


as  against  general  demurrer,  must  state 
facts  from  which  the  court  may  deter- 
mine that  the  consideration  is  adequate, 
and  that  the  contract  is  as  to  the  de- 
fendant just  and  reasonable:  Herzog  v. 
Atchison  etc.  R.  Co.,  153  Cal.  496,  501,  95 
Pac.  898,  citing  Cal.  Civ.  Code,  §  3391. 
See  Agard  v.  Valencia,  39  Cal.  292. 

20.  It  is  incumbent  upon  the  plaintiff, 
under  the  rule  that  in  a  suit  for  specific 
performance  it  must  be  affirmatively 
shown  that  the  contract  is  fair  and  just, 
to  state  such  facts  as  will  enable  the 
court  to  decide  whether  the  contract  is 
of  such  a  character  that  it  would  not  be 
inequitable  to  enforce  it:  Herzog  v. 
Atchison  etc.  R.  Co.,  153  Cal.  496,  95 
Pac.  898;  White  v.  Sage,  149  Cal.  613,  87 
Pac.  193;  Flood  v.  Templeton,  148  Cal. 
374,  83  Pac.  148;  Stiles  v.  Cain,  134  Cal. 
170,  66  Pac.  231;  Prince  v.  Lamb,  128 
Cal.  120,  60  Pac.  689;  Windsor  v.  Miner, 
124  Cal.  492,  57  Pac.  386;  Morrill  v.  Ever- 
son, 77  Cal.  114,  19  Pac.  190;  Nicholson 
v.  Tarpey,  70  Cal.  608,  12  Pac.  778;  Bruck 
v.  Tucker,  42  Cal.  346. 

21.  A  complaint  looking  to  the  enforce- 
ment of  a  bare  legal  right  to  have  the 
defendant  comply  with  the  contract  of  a 
predecessor,  without  showing  that  the 
contract  as  originally  made  was  fair  and 
just  as  between  the  parties,  or  that  it 
would  be  equitable  to  enforce  it,  and 
which  fails  to  show  that  the  recovery  of 
damages  for  a  breach  of  the  contract 
would  not  be  an  adequate  remedy,  is  in- 
sufficient for  obtaining  a  decree  in  spe- 
cific performance:  Herzog  v.  Atchison 
etc.  R.  Co.,  153  Cal.  496,  502,  95  Pac.  898. 
See  Flood  v.  Templeton,  148  Cal.  374,  S3 
Pac.  148,  and  Senter  v.  Davis,  38  Cal. 
450,  as  to  necessity  for  showing  that  re- 
covery of  damages  for  a  breach  of  con- 
tract would  not  be  an  adequate  remedy, 
a  condition  which  is  essential  to  obtain 
specific  performance  or  any  other  form 
of  equitable  relief. 

22.  A  bill  In  equity  to  redeem  per- 
sonal property,  held  essentially  a  bill  for 
specific  performance:  Angus  v.  Robin- 
son's Admr.,  62  Vt.  60,  19  Atl.  993;  Bell 
v.  Bank  of  California,  153  Cal.  234,  238, 
94  Pac.  889. 

23.  Tender.  —  When  unnecessary  to 
plead. — It  is  not  necessary  to  plead  a 
tender  where  the  complaint  shows  that 
the  defendant  had  refused  to  carry  out 
the  terms  of  the  contract,  arid  that  a 
tender  would   have   been   useless:     Long 


Ch.  CXXX.]  CODE  PROVISIONS,  ETC.  1775 

v.   Needham,    37  Mont.    408,    96   Pac.    731,  proper    for   the    plaintiff    to    ask    for    al- 

736;   Finlen   v.   Heinze,   32   Mont.   354,    80  ternative    relief,    either    for   damages    or 

Pac.     918;     Christiansen    v.     Oldrich,     30  for   appraisement    of    the    value    of    that 

Mont.  446,  76  Pac.  1007.  which  may  be  decreed  and  of  that  which 

24.  Prayer    for    alternative    relief.— In  may   not:     Huey  v.    Starr,    79   Kan.    781, 

an  action  for  specific  performance   of  a  101  Pac.  1075,   1077,  citing  Henry  v.  Mc- 

contract,     it     is     quite     customary     and  Kittrick,  42  Kan.  485,  22  Pac.  576. 


CHAPTER  CXXX. 

Revision  or  Reformation  of  Contracts. 

Page 

§  456.  Code  provisions    I'*?0 

§  457.  Complaints  [or  petitions]   l^76 

Form  No.  1071.  For  reformation  of  a  deed  for  mistake.     (Gen- 
eral form.)    111$ 

Form  No.  1072.  To   correct   and   reform   a  deed  to  lands   for 

mutual  mistake  1776 

Form  No.  1073.  To  reform  written  instrument,  and  for  specific 

performance  of  instrument  as  reformed.  . . .     1778 
§  458.  Annotations    1780 


§456.     CODE  PROVISIONS. 

When  contract  may  be  revised. 
California,  §  3399.  When,  through  fraud  or  a  mutual  mistake  of 
the  parties,  or  a  mistake  of  one  party,  which  the  other  at  the  time 
knew  or  suspected,  a  written  contract  does  not  truly  express  the 
intention  of  the  parties,  it  may  be  revised  on  the  application  of  a 
party  aggrieved,  so  as  to  express  that  intention,  so  far  as  it  can  be 
done  without  prejudice  to  rights  acquired  by  third  persons,  in  good 
faith  and  for  value.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6108.     North  Dakota,  Rev.  Codes  1905,  §  6619. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2349. 

Presumption  as  to  intent  of  parties. 
California,  §  3400.    For  the  purpose  of  revising  a  contract,  it  must 
be  presumed  that  all  the  parties  thereto  intended  to  make  an  equi- 
table and  conscientious  agreement.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6109.     North  Dakota,  Rev.  Codes  1905,  §  6620. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2350. 


1776 


REFORMATION  OF  CONTRACTS.  [Tit.  XVI. 


Scope  of  inquiry  on  revision. 

California,  §  3401.  In  revising  a  written  instrument,  the  court  may 
inquire  what  the  instrument  was  intended  to  mean,  and  what  were 
intended  to  be  its  legal  consequences,  and  is  not  confined  to  the 
inquiry  what  the  language  of  the  instrument  was  intended  to  be. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6110.     North  Dakota,  Rev.  Codes  1905,  §  6621. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2351. 

Specific  enforcement  of  revised  contract. 
California,  §  3402.    A  contract  may  be  first  revised  and  then  spe- 
cifically enforced.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6111.     North  Dakota,  Rev.  Codes  1905,  §  6622. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2352. 

§457.     COMPLAINTS   [OR   PETITIONS]. 

FORM   No.  1071 — For  reformation  of  a  deed  for  mistake.     (General  form.) 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  in  consideration  of  $  , 
the  defendants  sold  to  the  plaintiff  the  following-described  prem- 
ises:   [Give  correct  description  of  same.] 

2.  That  on  said  day  the  defendant  executed  and  delivered  to  the 
plaintiff  a  deed,  which  both  parties  supposed  conveyed  the  said 
premises  to  the  plaintiff,  whereas  the  description  of  the  premises  in 
said  deed  was  by  mistake  made  as  follows :  [Give  description  as  it 
appears  in  the  deed.] 

Wherefore,  the  plaintiff  prays  that  said  deed  may  be  reformed  so 
as  to  describe  said  premises  properly,  and  for  such  relief  as  is  proper. 

A.  B.,  Attorney  for  plaintiff. 
[Verification.] 

FORM   No.  1072 — To  correct  and  reform  a  deed  to  lands  for  mutual  mistake. 
(In  Home  and  Farm  Co.  v.  Freitas,  153  Cal.  680;  96  Pac.  308.) 
[Title  of  court  and  cause.] 

Plaintiff  for  the  cause  of  action  against  defendant  alleges : 
1.  That  plaintiff  is,  and  at  all  times  hereinafter  mentioned  was,  a 


Ch.  CXXX.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  1777 

corporation  organized  and  existing  under  the  laws  of  the  state  of 
California. 

2.  That  on  the  1st  day  of  April,  1903,  plaintiff  was  the  owner  in 
fee  of  a  tract  of  land  situated  in  the  county  of  Marin,  state  of  Cali- 
fornia, consisting  of  171  acres,  and  particularly  described  as  follows : 
[Here  follows  description.] 

3.  That  on  the  1st  day  of  April,  1903,  plaintiff  agreed  to  sell,  and 
defendant  agreed  to  purchase,  said  tract  of  171  acres,  *  *  *  at 
the  agreed  purchase  price  of  $8,633.82. 

4-8.  [Here  follow  averments  as  to  the  mutual  mistake  of  the  par- 
ties as  to  the  extent  and  boundaries  of  said  land,  and  the  mistake  in 
the  plat  and  description  thereof  in  the  deed.]  *  *  *  and  because 
of  such  mistake  and  incorrect  delineation  the  tract  of  land  included 
within  the  boundary  lines  delineated  and  shown  upon  said  plat,  and 
described  in  said  deed  to  defendant,  consisted  of  187  acres  instead  of 
171  acres,  as  both  plaintiff  and  defendant  believed  at  the  time  of  the 
execution  and  delivery  of  said  deed,  and  because  of  such  mistake  in 
said  plat  the  said  deed  by  plaintiff  to  defendant  conveyed  sixteen 
acres  in  excess  and  outside  of  the  true  boundary  line  of  said  tract  of 
171  acres. 

9.  That  the  sixteen  acres  of  land  in  excess  of  said  tract  of  171 
acres,  erroneously  and  by  mistake  conveyed  by  plaintiff  to  defendant 
as  aforesaid,  is  particularly  described  as  follows:  [Here  follows 
description  of  lands  conveyed  by  mistake.] 

10.  That  plaintiff  was  at  the  date  of  the  execution  and  delivery  of 
said  deed  the  owner  of  the  fee-simple  title  to  the  said  tract  of 
sixteen  acres  in  the  last  preceding  paragraph  particularly  described. 

11.  That  plaintiff  did  not  discover  or  become  aware  of  the  mis- 
take *  *  *  in  delineating  the  boundary  lines  of  said  tract  of 
171  acres  upon  said  plat  as  aforesaid,  nor  of  the  mistake  thereby 
made  in  said  conveyance  to  defendant,  until  the  8th  day  of  April, 
1903 ;  that  immediately  upon  discovery  of  said  mistake  plaintiff  noti- 
fied defendant  thereof,  and  demanded  of  defendant  that  said  mis- 
take be  corrected,  and  that  defendant  reconvey  to  plaintiff  the  said 
sixteen  acres  erroneously,  and  by  mistake,  conveyed  to  defendant  as 
aforesaid,  and  plaintiff  offered  to  prepare,  and  did  prepare,  the 
necessary  deed  reconveying  to  plaintiff  the  said  sixteen  acres  of 
land,  and  also  prepared  a  new  deed  conveying  to  defendant  by 
proper  and  accurate  description  the  said  tract  of  171  acres,  and 


1778  REFORMATION  OF  CONTRACTS.  [Tit.  XVI. 

offered  to  execute  and  deliver  the  same  to  defendant  at  its  own 
expense,  in  exchange  for  defendant's  deed  reconveying  to  plaintiff 
the  sixteen  acres  of  land  conveyed  to  defendant  by  a  mistake  as 
aforesaid,  and  plaintiff  was,  ever  since  has  been,  and  now  is  ready 
and  willing  to  prepare  and  cause  to  be  executed  at  its  expense 
all  conveyances  necessary  to  correct  and  rectify  the  said  mistake  and 
error  in  the  description  of  said  tract  of  land  as  aforesaid ;  but  defend- 
ant refused,  and  still  refuses,  to  reconvey  said  sixteen  acres  of  land 
to  plaintiff,  or  to  correct  said  mistake  in  any  respect. 

12.  That  said  sixteen  acres  of  land  erroneously  and  by  mistake 
conveyed  by  plaintiff  to  defendant  as  aforesaid  was  and  is  of  the 
value  of  $60  per  acre. 

Wherefore,  plaintiff  prays  judgment:  That  the  said  deed  of  April 
1,  1903,  be  reformed  and  corrected  so  as  to  express  the  true  intent 
and  meaning  of  the  parties  thereto;  that  it  be  adjudged  and  decreed 
that  plaintiff  is  the  owner  in  fee-simple  of  the  land  and  premises 
described  in  the  ninth  paragraph  of  this  complaint ;  and  that  plaint- 
iff have  and  recover  its  costs  from  defendant ;  and  for  such  other  and 
further  relief  as  may  be  agreeable  to  equity. 

"VVm.  Singer,  Jr.,  and 
Guy  Shoup, 

[Verification.]  Attorneys  for  plaintiff. 

FORM    No.  1073 — To  reform  written  instrument,  and  for  specific  performance 

of  instrument  as  reformed. 

k 

(Adapted  from  House  v.  Mc Mullen,  9  Cal.  App.  664;  100  Pac.  344.) 

[Title  of  court  and  cause.] 

Now  comes  the  plaintiff,  and  for  cause  of  action  against  the 
defendant  alleges : 

1.  That  at  all  of  the  times  hereinafter  mentioned  plaintiff  was,  and 
is  now,  the  owner,  seized  in  fee,  in  the  possession,  and  entitled  to  the 
possession,  of  all  that  certain  real  property  lying,  being,  and  situate 
in  the  county  of  Fresno,  state  of  California,  particularly  described 
as  follows,  to  wit:  [Here  follows  description  of  property  owned  by 
the  plaintiff.] 

2.  That  at  all  times  hereinafter  mentioned  the  defendant  was,  and 
is  now,  seized  in  fee  and  in  the  possession  of  all  that  real  property 
lying,  being,  and  situate  in  the  county  of  Alameda,  state  of  Califor- 


Ch.  CXXX.]  COMPLAINTS   [OR  PETITIONS].— FORMS.  177<J 

nia,  particularly  described  as  follows,  to  wit :    [Here  follows  descrip- 
tion of  property  belonging  to  defendant.] 

3.  That  on  the  5th  day  of  November,  1906,  the  plaintiff  and  defend- 
ant made  and  entered  into  a  certain  contract  and  agreement  in  writ- 
ing, which  said  contract  and  agreement  was  and  is  in  the  words  and 
figures  following,  to  wit:  [Here  follows  agreement  as  entered  into 
between  the  parties.] 

4.  That  on  the  6th  day  of  November,  1906,  the  following  words 
and  figures  were  written  on  the  back  of  said  written  agreement, 
to  wit:  "J.  H.  House  hereby  agrees  to  assume  a  certain  mortgage 
on  the  Berkeley  property  of  $2,000,  interest  paid  to  November  1st, 
1906.     [Signed]     J.  H.  House." 

That  said  words  so  written  on  the  back  of  said  agreement  were 
intended  to  be,  and  in  fact  constitute,  an  integral  part  and  portion 
of  said  written  agreement  [and  the  consideration  thereof]  herein- 
before set  out,  and  one  of  the  covenants  and  stipulations  of  said 
agreement  upon  the  part  of  this  plaintiff  to  be  done  and  performed. 

6.  That  at  and  before  the  making  and  execution  of  said  written 
contract  and  of  the  endorsement  thereon  by  this  plaintiff,  this  plaint- 
iff and  the  defendant  intended  that  said  instrument  should  mean, 
and  that  the  legal  consequences  thereof  should  be,  as  follows,  to  wit  : 
[Here  is  set  out  the  agreement  as  plaintiff  alleges  the  same  was 
intended.] 

7.  That,  through  a  mutual  mistake  of  plaintiff  and  the  defendant, 
the  parties  to  said  written  contract  hereinbefore  first  alleged  and 
set  out,  the  said  written  contract  did  not,  and  does  not,  truly  state  or 
express  the  intention  of  the  said  parties,  and  does  not  truly  express 
or  set  out  what  were  intended  to  be  the  legal  consequences  of  said 
written  contract  in  this,  to  wit :  [Here  are  set  out  the  particulars  in 
which  the  contract,  as  entered  into,  is  alleged  to  be  deficient  or 
incorrect.] 

8.  That  this  plaintiff  has  offered  to  perform  all  of  the  conditions 
of  said  contract  on  his  part  to  be  done  and  performed,  and  is  now 
ready,  and  at  all  times  has  been  ready,  to  perform  all  conditions  in 
said  contract  on  his  part  to  be  done  and  performed. 

9.  [Here  follow  specifications  of  offers  and  tenders  made  by  the 
plaintiff  to  the  defendant  in  conformity  with  the  contract,  as  the 
same  is  proposed  to  be  reformed,  of  demand  for  a  reconvening  deed, 


1780  REFORMATION  OF  CONTRACTS.  [Tit.  XVI. 

and  of  the  refusal  of  defendant  to  accept  tender  or  convey  back  the 
property  so  conveyed  by  mistake.] 

10.  *  *  *  That  said  contract  so  made  and  entered  into  by 
plaintiff  and  defendant  is  in  all  respects  just,  reasonable,  and  equita- 
ble, and  the  price  agreed  by  this  plaintiff  to  be  paid  for  the  property 
situate  in  the  town  of  Berkeley,  and  so  owned  and  held  by  said 
defendant,  and  by  him  agreed  to  be  conveyed  to  the  plaintiff,  is  ade- 
quate, just,  and  reasonable;  *  *  *  that  for  the  failure  and 
refusal  of  said  defendant  to  do  and  perform  the  terms  and  conditions 
of  said  contract  upon  his  part  to  be  performed  this  plaintiff  can 
receive  no  adequate  compensation  in  damages ;  wherefore,  the  plaint- 
iff seeks  specific  performance  of  all  the  terms  and  conditions  of  said 
contract. 

11.  That  this  plaintiff  is  now  ready,  and  at  all  times  has  been 
ready,  to  do  and  perform  all  the  covenants,  stipulations,  and  agree- 
ments of  said  contract  upon  the  part  of  this  plaintiff  to  be  performed ; 
and  plaintiff  now  offers  to  do  and  perform  all  of  such  covenants, 
terms,  stipulations,  and  conditions,  and  submits  himself  to  the  order, 
judgment,  and  decrees  of  this  court  in  the  premises. 

[Concluding  part.] 

Form  of  petition  in  an  action  for  the  reformation  of  a  contract:  Mumper  v.  Kelley, 
43  Kan.  256,  257,  23  Pac.  558,  559. 


§458.     ANNOTATIONS. 

Correction  of  mistake  of  record.  —Action  on  the  ground  of  fraud  or  mistake  must 
be  brought  within  five  years  from  the  time  of  the  discovery  of  such  fraud  or  mis- 
take, under  the  Iowa  statute.  But  such  statute  has  no  reference  to  an  action  to 
correct  any  evident  mistake  in  a  record,  which  mistake  consisted  in  the  failure  to 
properly  describe  certain  property  in  a  formal  order  of  sale  entered  in  probate.  The 
right  of  the  court  to  correct  an  evident  mistake  in  its  record  is  inherent,  and  this 
right  is  not  forbidden  by  the  statute,  nor  affected  by  the  mere  lapse  of  time:  Lam- 
bert v.  Rice,  143  Iowa  70,  120  N.  W.  96,  97,  citing  Iowa  Code  §§  244,  288;  Fuller  v. 
Stebbins,  49  Iowa  376;  Shelley  v.  Smith,  50  Iowa  543;  Hofacre  v.  City  of  Monticello, 
128  Iowa  239,  103  N.  W.  488. 

Mistake  must  be  mutual  to  entitle  to  relief.— It  is  a  general  doctrine  in  equity  that 
a  mistake  common  to  both  is  an  indispensable  element  to  the  reformation  of  a  con- 
tract. By  the  same  suit  in  equity,  a  contract  may  be  reformed  and  also  specifically 
enforced,  but  reformation  will  not  be  decreed,  and  the  bill  will  be  bad  in  that 
regard,  unless  elements  necessary  to  the  application  of  that  equitable  doctrine  are 
pleaded  as  grounds  for  the  relief:  Meek  v.  Hurst,  223  Mo.  688,  722  S.  W.  1022,  1024. 

An  averment  in  an  action  to  reform  an  agreement  for  the  sale  of  real  property, 
"that  parties  to  said  memorandum  and  agreement  intended  to  insert  therein  a 
description,  •  •  *  but  by  mistake  in  drawing  said  memorandum  »  •  •  the 
description  of  said  lot  or  personal  property  was  therein  set  forth  incorrectly,"  men- 
tioning the  particulars,  and  stating  definitely  the  mistake  and  how  It  was  made,  is 
sufficient  in  the  absence  of  a  demurrer  thereto  to  show  that  the  mistake  was  a 
mutual  mistake  of  the  parties:    Newton  v.  Hull,  90  Cal.  487,  27  Pac.  429. 


Ch.  CXXX.]  ANNOTATIONS.  1781 

Complaint  to  reform  a  deed  on  ground  of  mistake.— The  substance  of  a  complaint 
in  a  recent  action,  in  which  the  judgment  for  plaintiff  was  affirmed,  is  as  follows: 
Plaintiff  alleges  that  on  the  2d  day  of  November,  1893,  defendant  was  the  owner  of 
certain  lands  in  Mendocino  County,  consisting  of  200  acres,  which  are  described  in 
paragraph  1  of  the  complaint;  that  on  said  date  the  defendant  agreed  to  sell,  and 
did  sell,  said  real  property  to  one  Mrs.  Louise  D.  Milks;  "that  on  the  said  2d  day 
of  November,  1S93,  the  defendant  made,  executed,  and  delivered  his  deed  of  convey- 
ance, intending  to  convey  and  describe  the  lands  hereinbefore,  in  paragraph  1  of 
this  complaint,  set  forth  and  described,  and  no  other,  and  said  Mrs.  Louise  D.  Milks 
received  said  deed  fully  believing  that  said  deed  conveyed  the  lands  which  she  had 
purchased,  to  wit,  the  real  property  described  in  paragraph  1  of  this  complaint,  and 
no  other;  that  by  a  mistake  of  both  parties  to  said  instrument  the  said  deed  of  con- 
veyance did  not  truly  or  correctly  describe  the  premises  sold  and  intended  to  be 
described  therein  and  thereby;  that  said  deed  of  conveyance  described  certain  of  the 
property  intended  to  be  conveyed,  but  failed  to  include  within  the  description  cer- 
tain other  lands  intended  to  be  described  therein.  [Then  follows  a  copy  of  the  con- 
veyance as  it  was  executed.  The"  manner  in  which  the  mistake  occurred  is  also 
fully  set  forth,  it  being  alleged  that  the  same  was  due  to  the  carelessness  of  the 
scrivener  in  writing  the  word  "of"  instead  of  the  word  "and"  in  the  following  por- 
tion of  the  description:  N.  y2  of  the  S.  E.  quarter  and  the  S.  E.  quarter  of  the 
N.  E.  quarter  of  section  21,"  thereby  causing  to  be  conveyed  115  acres  less  than 
was  intended  by  the  parties.]  That  thereafter,  to  wit,  on  the  11th  day  of  December, 
1905,  the  said  Mrs.  Louise  D.  Milks  had  not  discovered  the  said  mistake,  and  on  the 
said  date  for  a  valuable  consideration  sold  to  plaintiff  herein  the  lands  hereinbefore, 
in  paragraph  1  of  this  complaint,  described;  that  in  making  out  and  executing  the 
deed  of  conveyance  of  said  lands  by  the  said  Mrs.  Louise  D.  Milks  to  this  plaintiff, 
the  scrivener  drafting  said  instrument  used  the  deed  of  conveyance  containing  the 
erroneous  description  from  defendant  to  the  said  Mrs.  Louise  D.  Milks."  The  same 
mistake  was  made,  the  parties  believing  that  the  land  intended  to  be  conveyed  was 
properly  described.  The  plaintiff  did  not  discover  said  mistake  until  about  the  first 
of  November,  1906.  Desiring  to  sell  said  property,  he  had  an  abstract  prepared  for 
the  intending  purchaser.  The  attorney  who  examined  said  abstract  noticed  the 
mistake  and  called  it  to  the  attention  of  plaintiff,  who  had,  up  to  that  time,  fully 
believed  that  the  aforesaid  deeds  correctly  and  truly  described  the  lands  actually 
purchased  and  paid  for  and  intended  to  be  conveyed  by  said  grantors.  The  plaintiff 
immediately  demanded  of  defendant  Walton,  and  of  the  said  Mrs.  Louise  D.  Milks, 
that  each  of  them  execute  to  plaintiff  a  new  deed  to  said  premises  correcting  said 
mistake.  Mrs.  Milks  did  so,  but  "the  defendant  refused,  and  still  refuses,  to  either 
make,  execute,  or  deliver  a  new  or  corrected  deed  to  said  premises,  and  refused,  and 
refuses,  in  any  manner  to  correct  said  mistake."  It  is  expressly  averred  that  the 
defendant  accepted  payment  in  full  for  all  the  land  intended  and  believed  to  be 
conveyed  by  said  deed  of  November  2,  1893:  Hart  v.  Walton,  9  Cal.  App.  502,  91 
Pac.  719. 

Jury's  PI.— 113. 


1782  RESCISSION.  [Tit.  XVI. 

CHAPTER   CXXXI. 

Rescission. 

§  459.  Code  provisions 1782 

§  460.  Complaints  [or  petitions]   178S 

Form  No.  1074.  To  rescind  for  fraud 1783 

Form  No.  1075.  To  rescind  for  mistake,  and  to  recover  pay- 
ment made  in  escrow. — Stating  cause  also  in 
common  count  for  money  had  and  received     1784 
Form  No.  1076.  Cross-complaint  in  action  to  rescind  contract 
for  purchase  of  real  estate,  and  to  recover 

portion  of  purchase  price  paid 1786 

§  461.  Answer 1788 

Form  No.  1077.  Defense  of  no  consideration,  and  of  matters 

that  would  justify  a  decree  of  rescission..     1788 

§  462.  Judgment  [or  decree]   1789 

Form  No.  1078.  For  defendant  and  cross-complainant. — Action 
to  rescind  contract  for  purchase  of  real  es- 
tate,  and   to   recover   portion   of   purchase 

price  paid 1789 

§  463.  Annotations    1790 

§459.     CODE  PROVISIONS. 

When  rescission  may  be  adjudged. 

California,  §  3406.     The  rescission  of  a  written  contract  may  be 
adjudged,  on  the  application  of  a  party  aggrieved: 

1.  In  any  of  the  cases  mentioned  in  section  sixteen  hundred  and 
eighty-nine;  or, 

2.  Where  the  contract  is  unlawful,  for  causes  not  apparent  upon 
its  face,  and  the  parties  were  not  equally  in  fault ;  or, 

3.  When  the  public  interest  will  be  prejudiced  by  permitting  it 
to  stand.     (Kerr's  Cyc.  Civ.  Code.) 

For  section  16S9.  referred  to  in  the  above  section,  see  ch.  XXI,  p.  210. 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6112.     North  Dakota,  Rev.  Codes  1905,  §  6R23. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2353. 

Rescission  for  mistake. 

California,  §  3407.     Rescission  cannot  be  adjudged  for  mere  mis- 
take, unless  the  party  against  whom  it  is  adjudged  can  be  restored 


Ch.  CXXX1.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1783 

to  substantially  the  same  position  as  if  the  contract  had  not  been 
made.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6113.     North  Dakota,  Rev.  Codes  1905,  §  6624. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2354. 


Judgment  as  against  party  seeking  rescission. 

California,  §  3408.  On  adjudging  the  rescission  of  a  contract,  the 
court  may  require  the  party  to  whom  such  relief  is  granted  to  make 
any  compensation  to  the  other  which  justice  may  require.  (Kerr's 
Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  lettered 
note  succeeding  and  the  difference  there  shown: 

a  Montana,  Rev.  Codes  1907,  §  6114.  North  Dakota,  Rev.  Codes  1905,  §  6625. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2355. 

a  Montana,  §  6114,  substantially  same  as  Cal.  Civ.  Code  §  3408,  except  in  the  last 
line,  after  "compensation,"  insert  "or  restoration." 


§460.     COMPLAINTS    [OR    PETITIONS]. 
FORM   No.  1074 — To  rescind  for  fraud. 

[Title  of  court  and  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges : 

1.  That  on  the  day  of  ,  19  ,  the  plaintiff  was  the 
owner  in  fee-simple  and  possessed  of  the  following  lands  and  tene- 
ments, situate  and  lying  in  the  county  of  ,  in  this  state,  and 
bounded  and  described  as  follows:    [Give  description  of  same.] 

2.  That  the  defendant,  by  fraud,  procured  and  induced  the  plaint- 
iff to  execute  and  deliver  to  the  defendant  a  deed  of  said  premises, 
conveying  the  same  to  the  defendant  in  fee,  by  fraudulently  repre- 
senting to  the  plaintiff  that  said  deed  of  conveyance  was  a  mere  lease 
of  said  premises  to  the  defendant  for  the  term  of  years,  and  the 
plaintiff  relying  upon  said  representations  of  the  defendant,  and 
being  unable  because  of  blindness  [or  other  defect,  or  state  other 
circumstances  of  fraud],  did  execute  and  deliver  the  same  as  and 
for,  and  believing  it  to  be,  such  lease,  and  for  no  other  purpose  what- 
ever. 


1784  RESCISSION.  [Tit.  XVI. 

Wherefore,  the  plaintiff  prays  that  the  said  deed  be  ordered  to  be 
delivered  up  and  canceled,  and  that  plaintiff  have  such  other  relief 
as  may  be  just  and  his  costs  herein. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 

FORM  No.  1075 — To  rescind  for  mistake,  and  to  recover  payment  made  in 
escrow. — Stating  cause  also  in  common  count  for  money 
had  and  received. 

(In  Johnson  v.  Withers,  9  Cal.  App.  52;  98  Pac.  42.) 
[Title  of  court  and  cause.] 
[Introductory  part.] 

1.  That  at  all  the  times  herein  mentioned  the  defendant  State  Bank 
and  Trust  Company  of  Los  Angeles  was,  and  now  is,  a  banking  cor- 
poration organized  under  the  laws  of  the  state  of  California. 

2.  That  on  or  about  June  19,  1906,  plaintiffs  entered  into  a  parol 
contract  with  defendant  AVithers,  whereby  plaintiffs  undertook  and 
agreed  to  purchase  of  and  from  said  Withers  for  mining  purposes  a 
quantity  of  land  located  in  the  county  of  Riverside,  state  of  Califor- 
nia, described  as  follows,  to  wit:  [Here  follows  description  of  said 
lands.] 

3.  That  the  purchase  price  for  said  interest  in  said  lands  was  to  be 
$20,000,  payable  as  follows :  $1,000  cash  on  the  making  of  the  agree- 
ment; $9,000  on  or  before  July  5,  1906;  and  $10,000  on  or  before 
August  5,  1906 ;  that  it  was  further  agreed  by  and  between  plaintiffs 
and  said  Withers  that  said  Withers  should  immediately  deposit 
his  deed  to  said  above-described  property  with  the  defendant  State 
Bank  and  Trust  Company  of  Los  Angeles,  said  deed  to  be  held  by 
said  company  in  escrow  until  the  purchase  price  of  property  shall  be 
fully  paid;  that  plaintiffs  should  make  all  payments  to  said  State 
Bank  and  Trust  Company  of  Los  Angeles,  said  amounts  so  paid  to  be 
held  by  said  company  as  deposits  for  the  parties  until  the  time  that 
the  purchase  price  should  be  fully  paid. 

3.  That  pursuant  to  said  contract  so  made  as  aforesaid  plaintiffs, 
on  or  about  June  19,  1906,  paid  to  said  State  Bank  and  Trust  Com- 
pany of  Los  Angeles  the  sum  of  $1,000,  and  said  State  Bank  and 
Trust  Company  accepted  such  payment,  and  receipted  therefor,  with 
full  knowledge  of  the  terms  and  conditions  of  plaintiffs'  said  con- 
tract with  defendant  Withers. 


Ch.  CXXXI.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1785 

4.  That  in  order  to  induce  plaintiffs  to  enter  into  the  above-men- 
tioned contract  defendant  Withers  stated  and  represented  to  plaint- 
iffs that  said  property  was  of  great  value  by  reason  of  the  presence 
thereon  of  a  valuable  mineral  substance  known  as  magnesite ;  *  *  * 
that  said  deposit  had  been  discovered  by  means  of  certain  shafts,  and 
that  he,  the  defendant  Withers,  had  caused  said  property  to  be  care- 
fully examined  by  an  expert  engineer  and  mineralogist,  an/}  caused 
the  quality  and  quantity  of  magnesite  discovered  in  place  to  be 
examined  and  reported  upon  by  said  expert,  and  that  said  expert 
examined  the  said  magnesite  in  place  on  said  property  and  reported 
the  value  and  amount  thereof  at  the  sum  of  $50,000. 

5.  That  plaintiffs,  and  each  of  them,  relying  entirely  upon  the  said 
representations  of  defendant  Withers  hereinbefore  set  out,  and  upon 
the  judgment  and  conclusion  of  the  above-named  expert,  and  induced 
thereby,  entered  into  a  contract  with  defendant  Withers  to  purchase 
the  above-described  property. 

6.  That  on  or  about  June  29,  1906,  and  subsequent  to  the  making 
of  said  contract  and  to  the  payment  of  said  sum  of  $1,000  to  the 
defendant  State  Bank  and  Trust  Company  of  Los  Angeles,  plaintiffs 
procured  a  copy  of  said  report  of  said  expert  concerning  the  above- 
described  property,  and  plaintiffs  then  discovered  that  said  expert 
had  made  a  mathematical  error  in  his  computation  of  the  quantity  of 
said  magnesite  discovered  in  place  on  such  property,  and  that  the 
true  value  of  the  magnesite,  according  to  the  judgment  of  said 
expert  as  deduced  from  his  figures,  was  $5,000,  instead  of  $50,000, 
and  said  expert  admitted  to  plaintiffs  that  he  had  erred  in  his  com- 
putation as  above  set  out;  that  immediately  after  making  such  dis- 
covery plaintiffs  notified  defendants  thereof  and  gave  notice  that  the 
plaintiffs  would  refuse  to  proceed  with  the  contract  to  purchase  the 
property  hereinabove  described ;  and  on  or  about  July  3,  1906,  plaint- 
iffs served  on  defendants,  and  on  each  of  them,  formal  notice  of  their 
election  to  rescind  said  contract  by  reason  of  such  misrepresentation 
and  mistake,  and  plaintiffs  further  offered  to  deliver  to  said  Withers 
everything  of  value  received  from  him,  and  further  demanded  pay- 
ment of  said  sum  of  $1,000  held  in  escrow  by  the  defendant  State 
Bank  and  Trust  Company  of  Los  Angeles;  but  that  defendants,  and 
each  of  them,  then  refused,  and  still  refuse,  to  pay  to  plaintiffs  said 
sum  of  $1 ,000,  or  any  part  thereof. 


1786  RESCISSION.  [Tit.  XVI. 

For  a  second  cause  of  action  plaintiff  alleges : 

1.  [Here  follows  averment  as  to  incorporation  of  defendant  com- 
pany.] 

2.  That  on  or  about  June  19,  1906,  in  the  county  of  Los  Angeles, 
state  of  California,  defendants,  State  Bank  and  Trust  Company  of 
Los  Angeles  and  W.  S.  Withers,  received  from  plaintiffs,  to  and  for 
the  use  and  benefit  of  plaintiffs,  the  sum  of  $1,000,  which  sum  defend- 
ants, and  each  of  them,  promised  to  pay  to  plaintiffs  on  demand. 

3.  That  thereafter  and  prior  to  the  commencement  of  this  action 
plaintiffs  demanded  of  defendants,  and  each  of  them,  payment  of 
said  money,  but  defendants  have  not  paid  the  same,  nor  any  part 
thereof,  and  the  whole  amount  is  now  due  and  wholly  unpaid. 

Wherefore,  plaintiff  prays  judgment  for  $1,000,  with  interest 
thereon  from  July  3,  1906,  together  with  the  costs  of  this  action. 

Cryer  &  Tuttle, 
[Verification.]  Attorneys  for  plaintiffs. 

FORM   No.  1076 — Cross-complaint  in  action  to  rescind  contract  for  purchase 
of  real  estate,  and  to  recover  portion  of  purchase  price 
paid. 
(In  Kornblum  v.  Arthurs,  154  Cal.  246;  97  Pac.  420.) 

[Title  of  court  and  cause.] 

The  defendant  complains  of  the  plaintiff,  and  for  cause  of  action, 
and  by  way  of  cross-complaint,  alleges : 

1.  [After  allegation  of  incorporation :]  *  *  *  that  on  the  14th 
day  of  November,  1904,  the  said  Abbot-Kinney  Co.  made,  executed, 
and  delivered  to  one  Fanny  M.  Kelley  a  certain  agreement  of  sale  of 
real  estate,  in  words  and  figures  following,  to  wit :  [Here  follows  a 
copy  of  said  agreement  of  sale,  the  same  being  declared  upon  in  the 
complaint,  and  which  agreement  plaintiff  seeks  to  have  rescinded.] 

2.  That  on  the  18th  day  of  April,  1905,  the  said  Fanny  M.  Kelley 
duly  sold  and  assigned  all  her  right,  title,  and  interest  in  and  to  said 
agreement  of  sale  to  this  defendant,  who  ever  since  has  been,  and 
now  is,  the  legal  owner  and  holder  thereof. 

3.  That  on  the  6th  day  of  July,  1905,  the  plaintiff  and  the  defend- 
ant, Mary  M.  Arthurs,  agreed  together  as  follows :  That  the  defend- 
ant, Mary  M.  Arthurs,  would  sell,  and  the  plaintiff  would  buy,  all  her 
interest  under  said  agreement  for  the  sum  of  $12,470,  to  be  paid  as 
follows:    $1,000  at  the  date  of  said  agreement;  $2,000  on  the  28th 


Ch.  CXXXI.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  17tf7 

day  of  July,  1905 ;  and  $9,470  on  or  before  the  1st  day  of  November, 
1905,  said  last-named  payment  to  bear  interest  at  the  rate  of  seven 
per  cent  per  annum  from  the  28th  day  of  July,  1905,  until  paid ;  and 
the  plaintiff,  under  and  by  virtue  of  said  agreement,  also  undertook 
and  agreed  to  pay  the  two  deferred  payments  mentioned  in  said 
agreement  of  sale  between  the  Abbot-Kinney  Co.  and  Fanny  M. 
Kelley,  which  became  due  on  the  14th  day  of  November,  1906 ;  that 
plaintiff  paid  to  the  defendant  the  $1,000  aforesaid,  and  the  $2,000 
aforesaid,  and  on  said  July  28,  1905,  took  possession  of  the  premises 
described  in  said  contracts,  and  has  failed  and  refused  to  pay  any 
portion  of  the  $9,470,  or  the  interest  thereon,  and  has  also  failed  and 
refused  to  pay  the  payment  which  became  due  to  the  Abbot-Kinney 
Co.  under  said  agreement,  on  November  14,  1905,  and  this  defendant, 
for  the  purpose  of  preventing  forfeiture  under  said  Abbot-Kinney 
Co.  's  contract  was  compelled  to,  and  did,  on  the  16th  day  of  Novem- 
ber, 1905,  pay  said  payment,  with  the  interest  thereon,  amounting  to 
the  total  of  $1,337.50. 

4.  That  this  defendant  is  now,  and  ever  since  the  making  of  this 
contract  between  this  defendant  and  plaintiff  has  been,  ready  and 
willing  to  comply  with  said  agreement  in  every  part  and  particular, 
and  before  the  bringing  of  this  action  offered  to,  and  still  offers  to, 
comply  with  that  portion  of  the  agreement  to  be  by  her  performed, 
on  the  performance  by  said  plaintiff  of  his  portion  of  said  agreement. 

5.  That  this  defendant  has  duly  performed  all  the  conditions  on  her 
part  under  said  agreement  between  herself  and  plaintiff. 

Wherefore,  this  defendant  prays  judgment  against  the  plaintiff: 
That  there  is  now  due  from  the  plaintiff  to  this  defendant,  under  said 
agreement,  the  sum  of  $10,808.33,  with  interest  on  $9,470,  at  the  rate 
of  seven  per  cent  per  annum,  from  the  28th  day  of  July,  1905,  and. 
with  interest  on  $1,337.50  thereof,  at  the  rate  of  seven  per  cent  per 
annum,  from  November  16,  1905;  that  the  court  fix  a  date  on  or 
before  which  plaintiff  shall  pay  such  sums  of  money,  and,  on  a  failure 
to  pay  the  same,  that  plaintiff  be  foreclosed  of  all  right  under  said 
agreement  to  purchase.  This  defendant  prays  for  general  relief  and 
•costs  of  suit. 

Tanner,  Taft  &  Odell, 
Attorneys  for  defendant,  Mary  M.  Arthurs,  cross-complainant. 

[Verification.] 


1788 


RESCISSION.  [Tit.  XVI. 


§461.     ANSWER. 

FORM   No.  1077 — Defense    of    no    consideration    and    of    matters   that   would 
justify  a  decree  of  rescission. 

(In  Dunlap  v.  Plummer,  1  Cal.  App.  426;  82  Pac.  445.) 

[Title  of  court  and  cause.] 

Comes  now  the  defendant,  and,  answering  plaintiff's  complaint  on 
file  herein,  for  himself,  and  not  for  his  co-defendant,  alleges : 

1.  That  there  was  no  consideration  received  by  this  defendant  for 
the  execution  of  the  note  declared  upon  in  this  action,  and  that  the 
said  Wight,  assignor  of  the  plaintiff,  did  not  part  with  anything 
of  value  or  suffer  any  detriment  by  reason  of  the  fact  that  this  de- 
fendant signed  said  note;  that  the  plaintiff  paid  no  consideration 
for  said  assignment  to  him  of  said  note. 

2.  And  further  answering  said  complaint,  this  defendant  avers  that 
at  and  prior  to  the  time  of  the  execution  of  said  note  one  Frank  0. 
Wakely  was  the  agent  of  Richard  H.  Wight,  the  payee  therein 
named,  and  had  theretofore,  as  plaintiff  is  informed  and  believes, 
and  therefore  states,  been  selling  real  estate  of  the  said  Wight,  and 
collected  the  money  from  said  sales,  and  had  not  accounted  for  the 
full  amount  received;  that  the  said  Wakely  was  at  that  time,  and 
ever  since  has  been,  insolvent,  with  little  capacity  to  earn  money, 
all  of  which  facts  were  well  known  to  his  said  principal,  Richard  H. 
Wight;  that  in  order  to  cover  the  deficiency  due  from  the  said 
Wakely  to  the  said  Wight  as  aforesaid,  the  said  note  was  made  up 
by  the  defendant  Wakely  in  his  office,  and  signed  by  this  defendant 
at  the  request  of  said  Wakely  and  the  said  Wight ;  that  at  that  time 
the  defendant  had  no  knowledge  of  the  financial  condition  of  the 
said  Wakely,  or  that  the  note  was  being  given  for  a  previous  debt 
from  the  said  Wakely  to  said  Wight;  that  the  said  Wight  well  knew 
that  the  said  defendant  was  acting  in  ignorance  of  the  transaction, 
and  that  the  said  defendant  would  have  to  pay  the  said  note  if 
he  signed  it,  by  reason  of  the  insolvency  of  the  said  Wakely  as  well 
as  his  incapacity  to  earn  money. 

3.  [Here  follow  averments  "for  a  further  answer,"  to  the  effect 
that  at  the  time  of  the  signing  of  said  note  the  defendant  Plummer, 
the  maker,  was  physically  and  mentally  incapacitated,  owing  to  sick- 
ness of  a  long  standing,  from  transacting  any  business  or  entering 
into  any  contract.  The  absence  of  the  strengthening,  and  otherwise 
essential,  averment  that  the  parties  with  whom  the  defendant  Plum- 


Ch.  CXXXL]  JUDGMENT   [OR  DECREE].— FORMS.  178!> 

mer  was  dealing  knew  of  such  incapacity  is  supplied  in  the  follow- 
ing:] *  *  *  that  defendant  received  no  consideration  for  the 
same,  and,  as  he  now  ascertains,  was  wholly  unacquainted  with  either 
the  said  Wight  or  the  said  Wakely;  that  this  defendant  did  not  at 
said  or  any  time  receive  any  consideration  whatever  for  the  signing 
of  said  note;  that  by  reason  of  said  incapacity  of  this  defendant 
during  said  period,  and  particularly  at  the  time  of  the  signing  of  said 
note,  defendant  avers  that  he  did  not  execute  the  note  set  out  in  the 
complaint  herein,  inasmuch  as  he  was  not  capable  at  said  time  of 
comprehending  and  understanding  the  nature  of  the  obligations  of 
the  contract  be  was  entering  into  or  the  liability  he  was  incurring 
thereby. 

Wherefore,  this  defendant  prays,  that  plaintiff  take  nothing  as 
against  this  defendant,  and  that  this  defendant  have  judgment  for 
his  costs  and  reimbursements  in  this  action  expended,  and  for  such 
other  relief  as  may  be  proper  in  the  premises. 

Dunnigan  &  Dunnigan, 

[Verification.]  Attorneys  for  defendant. 

§462.     JUDGMENT  [OR  DECREE]. 

FORM  No.  1078 — For  defendant  and  cross-complainant. — Action  to  rescind 
contract  for  purchase  of  real  estate,  and  to  recover  por- 
tion of  purchase  price  paid. 

(In  Kornblum  v.  Arthurs,  154  Cal.  246;  97  Pac.  420.) 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  to  be  heard  on  the  26th  day  of 
November,  1906,  before  the  court  sitting  without  a  jury,  a  jury  trial 
having  been  duly  and  legally  waived,  David  Goldberg,  Esq.,  and 
Clarence  Meily,  Esq.,  appearing  as  counsel  for  plaintiff,  and  Tanner, 
Taft  &  Odell  for  defendant,  Mary  M.  Arthurs.  Said  action  was 
tried  upon  the  complaint  of  plaintiff,  the  answer  of  defendant,  Mary 
M.  Arthurs,  the  cross-complaint  of  the  defendant,  Mary  M.  Arthurs, 
and  the  answer  thereto  by  the  plaintiff,  and  the  evidence  being 
closed,  the  cause  was  submitted  to  the  court  for  its  decision,  and  the 
court  having  filed  its  decision,  in  writing,  in  which  it  orders  judg- 
ment according  to  the  prayer  of  the  cross-complaint  and  for  the 
defendant,  as  against  the  original  complaint.  Wherefore,  by  reason 
of  the  law  and  the  foregoing: 


1790  RESCISSION.  [Tit.  XVI. 

It  is  ordered,  adjudged,  and  decreed,  that  plaintiff  take  nothing 
by  his  complaint  filed  herein,  and  said  complaint  be  hence  dismissed ; 
and  it  is  further  ordered  and  adjudged,  that  there  is  due  under  the 
terms  of  the  contract  set  out  in  the  cross-complaint  to  the  defendant, 
Mary  M.  Arthurs,  from  the  plaintiff,  the  following  sums:  [a]  the 
sum  of  $9,470,  with  interest  thereon,  at  the  rate  of  seven  per  cent  per 
annum,  from  the  28th  day  of  July,  1905,  and  [b]  the  further  sum  of 
$1,337.50,  with  interest  thereon,  at  the  rate  of  seven  per  cent  per 
annum,  from  the  16th  day  of  November,  1905.  And  it  is  further 
adjudged,  that  the  plaintiff  pay  unto  the  defendant,  Mary  M. 
Arthurs,  said  several  sums,  with  interest  as  aforesaid,  up  to  the  time 
of  payment,  within  ten  days  from  the  entry  of  this  judgment.  And 
on  failure  to  so  pay,  then  it  is  ordered,  adjudged,  and  decreed,  that 
the  said  plaintiff  be  forever  foreclosed  and  debarred  from  claiming 
any  right,  title,  or  interest  in  the  contract  set  up  in  the  cross-com- 
plaint or  the  real  property  described  therein.  It  is  further  ordered 
and  adjudged,  that  the  defendant,  Mary  M.  Arthurs,  do  recover  from 
the  plaintiff,  M.  S.  Kornblum,  her  costs  and  disbursements  herein, 
amounting  to  the  sum  of  $61.50. 

Dated  this  30th  day  of  April,  1906. 

J.  S.  Noyes, 
Judge  of  Superior  Court. 

§463.     ANNOTATIONS.— Rescission. 

1.  Rescission  an  equitable  remedy. 
2,  3.  Rescission  for  fraud  or  mistake. 

4.  Relief  administered  irrespective  of  form  of  action. 
6,  6.  Petition,  when  insufficient. 

7.  Pleading  defense  of  rescission  in  the  alternative. 

1.  Rescission  an  equitable  remedy. —  dence  may  establish:  Clemens  v.  Clem- 
Complete  and  full  justice  is  a  funda-  ens,  28  Wis.  637,  9  Am.  Rep.  520;  Leigh- 
mental  doctrine  of  equity  jurisprudence,  ton  v.  Grant,  20  Minn.  325  (Gil.  298) ; 
and  if  damages,  as  well  as  rescission,  Daniel  v.  Mitchell,  1  Story,  172,  Fed.  Cas. 
are  essential  to  accomplish  full  justice,  No.  3562;  Stebbins  v.  Eddy,  4  Mason, 
they  will  both  be  allowed:  Holland  v.  414,  Fed.  Cas.  No.  13342;  Smith  v.  Bab- 
Western  B.  &  T.  Co.  (Tex.  Civ.  App.),  cock,  2  Woodb.  and  M.  246,  Fed.  Cas. 
118  S.  W.  218;  Wintz  v.  Morrison,  17  No.  13009;  White  v.  Denman,  1  Ohio  St. 
Tex.  372,  67  Am.  Dec.  658.  110;    Willamas    v.    Sturdemant,    27    Ala. 

2.  Rescission  for  fraud  or  mistake. —  598;  Moehlenpah  v.  Mayhew,  138  Wis. 
The    rule    supported    by    the    weight    of  561,  118  N.  W.  826,  831. 

authority  is  that  the  facts  pleaded  must  3.  Upon   a  bill   filed   for   relief  on   the 

show   a   case   of   fraud   and    mistake,    or  ground  of  fraud,    relief  may  be  granted 

fraud   or   mistake,    in    the   complaint   in  on     the     ground     of     mistake:      Read's 

order   to   entitle   the   complainant   to   re-  Admrs.   v.    Cramer,    2   N.   J.    Eq.    277,   34 

lief  upon   either  ground  which   the   evi-  Am.   Dec.  204.     Likewise,  where  an  an- 


Ch.  CXXXII.] 


ANNOTATIONS,  ETC. 


1791 


swer  averred  mistake,  relief  may  be 
given  on  the  ground  of  fraud:  Berry- 
man  v.  Graham,  21  N.  J.  Eq.  370. 

4.  Relief  administered  irrespective  of 
form  of  action. — Under  the  form  of  pro- 
cedure whereby  the  distinction  between 
forms  of  action  is  abolished,  the  court 
may  in  an  action, — in  effect,  a  suit  to 
enforce  a  rescission  which  has  been  of- 
fered and  refused, — administer  equitable 
relief,  regardless  of  the  question 
whether  under  a  former  system  of 
jurisprudence  the  action  would  be 
deemed  an  action  in  assumpsit  for 
money  paid,'  or  an  action  in  equity  to 
compel  rescission  and  a  return  of  the 
consideration:  Spreckels  v.  Gorrill,  152 
Cal.  383,  92  Pac.  1011,  1016,  (to  recover 
money  alleged  to  have  been  paid  as  the 
price  of  corporate  stock). 

5.  Petition,  when  insufficient. — A  peti- 
tion in  an  action  in  equity  to  rescind 
an  executed  contract  of  exchange  of 
real  estate,  and  to  set  aside  a  deed  on 
the  ground  of  fraud,  which  does  not 
plead  sufficient  facts  to  constitute  fraud, 
and  from  which  it  is  apparent  that  the 
plaintiff  was  not  acting  equitably  in  his 


offer  of  rescission,  that  he  was  not 
prompt  in  demanding  a  rescission,  etc.; 
held  insufficient:  Town  of  Grand  River 
v.  Switzer,  143  Iowa  9,  121  N.  W.  516, 
517. 

6.  A  complaint  in  equity  for  rescission 
of  a  contract  can  not  be  supported  by 
averments  as  to  a  breach  of  a  condition 
subsequent,  or  of  an  express  warranty, 
or  breach  of  the  covenant,  in  the  ab- 
sence of  other  grounds  of  equitable 
jurisdiction:  Forster  v.  Flack,  140  Wis. 
48,  121  N.  W.  890,  891,  citing  Davison  v. 
Davison,  71  N.  H.  180,  51  Atl.  905;  Raley 
v.  Umatilla  County,  15  Ore.  172,  13  Pac. 
890,  3  Am.  St.  Rep.  142;  Love  v.  Teter, 
24   W.    Va.    741. 

7.  Pleading  defense  of  rescission  in 
the  alternative.— A  defense  of  general 
denial,  coupled  with  the  special  defense, 
stating  that  whatever  agreement,  if  any, 
the  defendant  made  for  the  purchase  of 
stock  referred  to  in  plaintiff's  petition 
was,  by  and  with  the  consent  of  the 
plaintiff,  rescinded;  held,  not  bad  for  in- 
consistency between  defenses:  Palais 
Du  Costume  Company  v.  Beach  (Mo. 
App.),   129  S.  W.  270,   271. 


CHAPTER   CXXXII. 

Cancelation  of  Instruments. 

Page 

§  464.  Code   provisions    1792 

§  465.  Complaints   [or  petitions]    1792 

Form  No.  1079.  To  annul  a  contract 1792 

Form  No.  1080.  Supplemental  complaint  in  action  commenced 
by  special  administrators  and  continued  by 
executors  to  quiet  title  and  for  cancelation 

of  forged  deed  1794 

§  466.  Answer 1799 

Form  No.  1081.  Defense  that  instrument  was  executed  under 

undue  influence. — Action  to  cancel  deed   . . .     1799 

§  467.  Judgments  [or  decrees]   1800 

Form  No.  1082.  Confirming  deed,  and  quieting  defendant's  title 
thereunder. — Action  to  cancel  deed  alleged 
to  have  been  executed  under  undue  influ- 
ence       1800 

Form  No.  1083.  Annulling  deed,  and  quieting  plaintiff's  title 
as  against  the  same. — Action  for  cancela- 
tion of  forged  deed 1801 

§468.  Annotations   : 1802 


1792  CANCELATION  OF  INSTRUMENTS.  [Tit.  XVL 

§464.     CODE  PROVISIONS. 

When  cancelation  may  be  adjudged. 
California,  §  3412.  A  written  instrument,  in  respect  to  which  there 
is  a  reasonable  apprehension  that  if  left  outstanding  it  may  cause 
serious  injury  to  a  person  against  whom  it  is  void  or  voidable,  may, 
upon  his  application,  be  so  adjudged,  and  ordered  to  be  delivered 
up  or  canceled.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing.  Where  the 
provisions  differ  materially  from  the  above,  a  further  reference  is  made  in  a  let- 
tered note  succeeding  and  the  difference  there  shown: 

Montana,  Rev.  Codes  1907,  §  6115.  a  North  Dakota,  Rev.  Codes  1905,  §  6626. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2356. 

a  North  Dakota,  §  6626.  When  a  writ-  judged  void  and  the  same  be  ordered  to 
ten  instrument,  or  the  record  thereof,  be  delivered  up  for  cancelation  and  the 
may  cause  injury  to  a  person  against  record  thereof  canceled,  whether  extrin- 
whom  such  instrument  is  void  or  void-  sic  evidence  is  necessary  to  show  its  in- 
able,  such  instrument  may,  in  an  action  validity  or  not. 
brought    by    the    party    injured,    be    ad- 

As  to  instrument  obviously  void. 
California,  §  3413.  An  instrument,  the  invalidity  of  which  is 
apparent  upon  its  face,  or  upon  the  face  of  another  instrument  which 
is  necessary  to  the  use  of  the  former  in  evidence,  is  not  to  be  deemed 
capable  of  causing  injury,  within  the  provisions  of  the  last  section. 
(Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6116.     South   Dakota,  Rev.  Codes  1903,  C.  C. 
§  2357. 

Cancelation  in  part. 
California,  §  3414.    Where  an  instrument  is  evidence  of  different 
rights  or  obligations,  it  may  be  canceled  in  part,  and  allowed  to  stand 
for  the  residue.     (Kerr's  Cyc.  Civ.  Code.) 

The  following  statutes  treat  of  the  same  subject  as  the  foregoing: 
Montana,  Rev.  Codes  1907,  §  6117.     North  Dakota,  Rev.  Codes  1905,  §  6627. 
South  Dakota,  Rev.  Codes  1903,  C.  C.  §  2358. 

§465.     COMPLAINTS  [OR  PETITIONS]. 
FORM   No.  1079 — To  annul  a  contract. 

[Title  of  court  and  cause.] 

Plaintiff  complains  of  defendant,  and  for  cause  of  action  alleges: 

1.  That  on  the  day  of  ,  19     ,  plaintiff  was  the  owner 


Ch.  CXXXII.]         COMPLAINTS  [OR  PETITIONS].— FORMS.  17!);; 

of  a  tract  of  land  situate  in  the  county  of  ,  in  this  state,  and 

particularly  described  as  follows,  to  wit:  [Here  describe]  ;  that  said 
land  was  then,  and  ever  since  has  been,  and  now  is,  of  the  value  of 
$ 

2.  That  plaintiff,  on  the  date  aforesaid,  and  for  some  time  prior 
thereto  and  thereafter,  was  infirm  in  mind  [or  physically],  the  nature 
of  his  infirmity  [or  physical  deficiency,  such  as  loss  of  eyesight,  etc.] 
being  as  follows:  [Here  allege  the  facts  showing  the  plaintiff's  con- 
dition] ;  that  by  reason  thereof  the  plaintiff  was  on  said  date  incapac- 
itated from  doing  any  business  or  making  or  entering  into  any 
contract  whatever  [or  if  the  disability  be  such  as  to  have  been  fraud- 
ulently taken  advantage  of,  allege  the  facts  accordingly]  ;  that  on 
the  date  aforesaid,  the  defendant,  knowing  of  the  plaintiff's  said 
incapacity  and  infirmity  [or  disability],  and  for  the  purpose  of 
defrauding  the  plaintiff,  procured  and  caused  plaintiff  to  execute  an 
instrument  in  writing  in  the  form  of  a  deed  conveying,  or  purporting 
to  convey,  to  the  defendant  said  tract  of  land  from  the  plaintiff; 
that  the  defendant  falsely  represented  said  instrument  to  be  [here 
state  specific  representations,  etc.,  constituting  facts  of  fraud]  ;  that 
plaintiff,  by  reason  of  his  condition  of  mind  [or  physical  condition] 
aforesaid,  believing  such  representations  to  be  true,  and  by  reason 
of  said  representations,  and  wholly  and  only  on  account  thereof, 
executed  such  instrument  in  writing,  and  acknowledged  the  execu- 
tion thereof,  and  delivered  the  same  to  defendant ;  that  there  was  not 
then,  and  never  was,  any  consideration  given  for  such  deed ;  that  on 
the  day  of  ,  19     ,  defendant  caused  said  instrument  in 

writing  to  be  recorded  as  a  deed  in  the  office  of  the  recorder  of  said 
county  of 

Wherefore,  plaintiff  prays  judgment:  That  said  instrument  in 
writing  be  delivered  up  by  the  defendant;  that  the  same,  together 
with  the  record  thereof,  be  adjudged  to  be  void ;  that  defendant,  or, 
in  the  event  of  his  refusal  so  to  do,  some  competent  officer  or  person 
appointed  by  the  court  herein,  convey  to  plaintiff  the  legal  title 
acquired  by  the  defendant  as  hereinbefore  alleged;  that  the  court 
grant  such  other  and  further  relief  as  the  equity  of  the  case  may 
require ;  and  that  plaintiff  be  given  his  costs  of  suit  herein  incurred. 

A.  B.,  Attorney  for  plaintiff. 

[Verification.] 


1794  CANCELATION  OF  INSTRUMENTS.  [Tit.  XVI. 

FORM  No.  1080 — Supplemental  complaint  in  action  commenced  by  special 
administrators  and  continued  by  executors  to  quiet  title 
and  for  cancelation  of  forged  deed. 

(In  Angus  v.  Craven,  132  Cal.  691;  64  Pac.  1091.) 

[Title  of  court  and  cause.] 

Now  come  the  plaintiffs,  James  S.  Angus,  Thomas  G.  Crothers,  and 
W.  S.  Goodfellow,  executors  of  the  last  will  and  testament  of  James 
G.  Fair,  deceased,  (substituted  for  James  S.  Angus,  Thomas  G. 
Crothers,  and  W.  S.  Goodfellow,  surviving  special  administrators  of 
the  estate  of  James  G.  Fair,  deceased,)  and  by  leave  of  court  first 
had  and  obtained,  and  by  way  of  supplemental  complaint,  complain 
of  and  against  the  defendants,  Nettie  R.  Craven,  Marc  Livingston,. 
George  R.  Williams,  Stephen  Roberts,  Elizabeth  Haskins,  John  Doe,. 
Richard  Roe,  Jane  Doe,  and  Mary  Roe,  and  for  cause  of  complaint 
and  action,  allege  as  follows : 

[Averment  of  ownership  in  decedent.] 

1.  That  on  the  28th  day  of  December,  1894,  James  G.  Fair  was  the 
lawful  owner  in  fee-simple,  and  in  the  actual  possession  by  himself 
and  his  tenants,  of  all  those  certain  premises  or  parcels  of  land 
situated,  lying,  and  being  in  the  city  and  county  of  San  Francisco, 
state  of  California,  and  bounded  and  described  as  follows:  [Here 
follows  descriptions  of  said  property.] 

[Averments  as  to  decease,  appointment  of  special  administrators,  etc.] 

2.  That  on  said  28th  day  of  December,  1894,  and  while  the  said 
James  G.  Fair  was  still  the  owner  in  fee-simple  of  said  described 
premises,  the  said  James  G.  Fair  died  testate  in  the  city  and  county 
of  San  Francisco,  state  of  California,  leaving  said  real  estate  and 
other  property,  real  and  personal,  in  said  city  and  county,  and  being 
a  resident  of  said  city  and  county  of  San  Francisco  at  and  immedi- 
ately prior  to  the  time  of  his  death. 

3.  That  thereafter,  and  on  the  29th  day  of  December,  1894,  the  last 
will  and  testament  of  said  James  G.  Fair,  deceased,  together  with  a 
petition  for  the  probate  thereof,  was  filed  for  probate  in  this  court, 
and  such  proceedings  were  thereafter  had  in  this  court  in  the  matter 
of  said  estate  that  on  the  2d  day  of  January,  1895,  an  order  was  duly 
given,  made,  and  entered  by  said  court  wherein  and  whereby  these 
plaintiffs,  together  with  one  Louis  C.  Bresse,  were  appointed  special 


Ch.  CXXXIL]         COMPLAINTS   [OR  PETITIONS].— FORMS.  17'Jo 

administrators  of  the  estate  of  James  G.  Fair,  deceased,  with  power 
and  authority  to  collect  and  take  charge  of  said  estate  in  whatever 
county  or  counties  the  same  should  be  found,  to  exercise  such  power 
as  might  he  necessary  in  the  preservation  of  said  estate,  and  to 
preserve  all  the  goods,  chattels,  notes,  and  effects  of  said  deceased, 
all  incomes,  rents,  issues,  profits,  claims,  and  demands  of  said  estate, 
as  well  as  to  take  the  charge  and  management  of,  and  enter  upon  and 
preserve  from  damage,  waste,  and  injury,  the  real  estate  belonging 
to  said  estate,  and  for  any  such  and  all  necessary  purposes  to  com- 
mence and  maintain  or  defend  suits  and  other  legal  proceedings,  as 
administrators,  and  to  exercise  such  other  powers  and  to  do  such 
other  acts  and  things  as  should  be  directed  or  allowed  by  the  further 
orders  of  this  court;  that  thereupon,  and  on  the  last-named  date, 
these  plaintiffs,  together  with  said  Louis  C.  Bresse,  duly  qualified  as 
such  special  administrators,  special  letters  of  administration  were 
thereupon  issued  to  them,  which  have  never  been  modified,  revoked, 
or  set  aside,  and  ever  since  said  last-named  date,  and  until  the  16th 
day  of  November,  1896,  said  plaintiffs  were  the  duly  appointed, 
qualified,  and  acting  special  administrators  of  the  estate  of  said 
James  G.  Fair,  deceased,  the  said  Louis  C.  Bresse  having  in  the  mean- 
time, and  on  the  22d  day  of  April,  1896,  died. 

[Possession  by  special  administrators,  and  their  succession  by  executors.] 

4.  That  immediately  upon  their  appointment  as  such  special  ad- 
ministrators, these  plaintiffs  and  Louis  C.  Bresse  entered  into  and 
upon,  and  took  possession  of,  all  the  estate  of  said  deceased,  includ- 
ing the  real  estate  hereinbefore  particularly  described,  and  thereafter 
continued  in  the  possession  and  management  of  the  same  until  said 
22d  day  of  April,  1896,  since  which  last-named  date  and  until 
the  16th  day  of  November,  1896,  these  plaintiffs,  acting  as  such  sur- 
viving special  administrators,  continued  in  the  actual  and  peaceable 
possession  of  said  premises  and  every  part  thereof,  and  during  all  of 
said  times  collected  and  received  all  the  rents,  issues,  and  profits  of 
said  premises,  amounting  to  the  sum  of  $4,000  per  month,  or  there- 
abouts; that  on  the  23d  day  of  June,  1896,  this  court,  by  its  order 
duly  given  and  made,  authorized  these  plaintiffs,  acting  as  such 
special  administrators,  to  commence  this  action ;  that  on  the  16th  day 
of  November,  1896,  and  since  the  commencement  of  this  action,  an 
order  and  decree  was  duly  given,  made,  and  entered  by  said  court 


1796  CANCELATION  OF  INSTRUMENTS.  [Tit.  XVI. 

in  the  matter  of  the  estate  of  said  James  G.  Fair,  deceased,  wherein 
and  whereby  said  last  will  and  testament  of  said  James  G.  Fair, 
deceased,  was  duly  admitted  to  probate,  and  wherein  and  whereby 
these  plaintiffs  were  duly  appointed  the  executors  of  said  last  will 
and  testament ;  that  thereafter,  and  on  the  same  day,  these  plaintiffs 
duly  qualified  as  such  executors,  and  letters  testamentary  were  duly 
and  regularly  issued  out  of  this  court  to  them,  and  they  have  ever 
since  been,  and  still  are,  the  duly  appointed,  qualified,  and  acting 
executors  of  the  last  will  and  testament  of  said  James  G.  Fair, 
deceased,  and  since  the  said  16th  day  of  November,  1896,  these 
plaintiffs,  as  executors  of  the  last  will  and  testament  of  James  G. 
Fair,  deceased,  have  continued  in  the  possession  and  management 
of  all  the  estate  of  said  deceased,  including  the  real  estate  herein- 
before particularly  described,  and  have  continued  in  the  actual  and 
peaceable  possession  of  said  premises  and  every  part  thereof,  and 
during  all  of  said  times  have  collected  and  received,  and  are  now 
collecting  and  receiving,  all  the  rents,  issues,  and  profits  of  said 
premises,  amounting  to  the  sum  of  $4,000  per  month,  or  thereabouts. 


[Claims  of  defendants  under  forged  deed.] 

5.  That  the  defendants  claim  and  pretend,  and  each  of  them  claims 
and  pretends,  to  have  some  estate,  right,  title,  or  interest  in  or  to  the 
said  premises  hereinbefore  described  adverse  to  these  plaintiffs,  as 
such  executors  of  the  last  will  and  testament  of  the  said  James  G. 
Fair,  deceased,  and  adverse  to  said  estate ;  that  said  claim  of  said 
defendants  is  based,  as  these  plaintiffs  are  informed  and  believe,  and 
therefore  aver,  upon  certain  false,  forged,  and  simulated  deeds,  pur- 
porting to  have  been  executed  by  said  James  G.  Fair  in  his  lifetime, 
on  the  8th  day  of  September,  1894,  and  by  which  said  false,  forged, 
and  simulated  deeds  it  is  claimed  by  the  said  defendants  the  said 
James  G.  Fair  conveyed  the  premises  hereinbefore  described,  or 
a  portion  thereof,  to  the  defendant  Nettie  R.  Craven,  and  which  false, 
forged,  and  simulated  deeds  were  recorded  in  the  county  recorder's 
office  in  the  city  and  county  of  San  Francisco,  state  of  California,  on 
the  19th  day  of  June,  1896 ;  that  the  defendants  other  than  defendant 
Nettie  R.  Craven  have,  or  claim  to  have,  some  interest  in  said 
described  premises  under  and  in  subordination  to  the  claims  of  the 
said  defendant  Nettie  R.  Craven,  and  all  of  said  defendants  have, 
or  claim  to  have,  some  other  interest  in  said  described  premises 


Ch.  CXXXI1.]         COMPLAINTS   [OR  PETITIONS].— FORMS.  1797 

adverse  to  the  said  estate  of  said  James  G.  Fair,  deceased,  and  to 
these  plaintiffs,  as  such  executors,  the  nature  of  which  claim  is 
unknown  to  these  plaintiffs. 

[Injury  resulting  from  defendants'  claims.] 

6.  That  the  claims  and  pretensions  of  said  defendants  are,  and 
each  of  them  is,  false  and  unfounded  either  in  law  or  in  equity,  but 
these  plaintiffs  aver  that  the  assertion  of  the  same  by  the  said  defend- 
ants, and  by  each  of  them,  tends  to  cloud  the  title  of  the  estate  of 
said  James  G.  Fair,  deceased,  to  said  described  premises,  to  impair 
the  market  value  thereof,  obstruct  these  plaintiffs  in  the  management 
of  said  premises,  as  executors  of  said  last  will  and  testament  of  said 
James  G.  Fair,  deceased,  to  harass  and  annoy  them  in  the  possession 
thereof,  and  in  the  collection  of  the  rents,  issues,  and  profits  thereof 
belonging  to  the  estate,  to  depreciate  the  market  value  of  said  prem- 
ises, and  thereby  to  inflict  irreparable  injury  upon  the  said  estate, 
and  upon  these  plaintiffs,  as  executors  of  the  last  will  and  testament 
of  said  James  G.  Fair,  deceased. 

7.  And  these  plaintiffs  further  aver  that,  unless  restrained  by  the 
judgment  and  decree  of  this  honorable  court,  the  assertion  of  said 
false  and  fraudulent  claim  to  said  premises  by  said  defendants  will 
continue  to  harass  and  annoy  these  plaintiffs,  as  such  executors,  in 
the  possession  of  said  premises,  will  depreciate  the  market  value  of 
said  premises,  will  obstruct,  harass,  and  annoy  these  plaintiffs,  as 
such  executors,  in  the  collection  of  the  rents,  profits,  and  issues  of 
said  described  premises,  and  cloud  the  title  of  the  estate  to  said 
premises. 

[As  to  fictitious  parties.] 

8.  That  the  real  names  of  the  defendants  sued  herein  by  the 
fictitious  names  of  John  Doe,  Richard  Roe,  Jane  Doe,  and  Mary 
Roe  are  unknown  to  these  plaintiffs,  but,  when  the  same  are  discov- 
ered, these  plaintiffs  pray  that  said  real  names  may  be  inserted 
herein  in  lieu  of  said  fictitious  names. 

9.  That  heretofore,  to  wit,  on  the  23d  day  of  February,  1897,  and 
since  the  commencement  of  this  action,  by  the  order  of  this  court 
duly  given  and  made  herein,  the  plaintiffs,  as  executors  of  the  last 
will  and  testament  of  James  G.  Fair,  deceased,  were  substituted  for 
themselves  as  surviving  special  administrators  of  said  estate. 

Jury's  PI.— 114. 


1798  CANCELATION  OF  INSTRUMENTS.  [Tit.  XVI. 

[Prayer  for  cancelation,  injunction,  etc.] 

Wherefore,  these  plaintiffs  as  such  executors,  pray  the  judgment 
and  decree  of  this  court :  That  said  defendants,  and  each  of  them,  be 
summoned  to  answer  to  the  premises;  that  they,  and  each  of  them, 
set  forth  what  claim  they  have  or  pretend  to  have  to  said  described 
premises,  or  to  any  part  or  portion  thereof ;  that  the  said  deeds  and 
the  said  certificates  of  acknowledgment  and  the  aforesaid  records  of 
the  aforesaid  respective  deeds  be  adjudged  to  be  null  and  void,  and 
that  the  same  be  canceled  and  removed  as  a  cloud  upon  the  title 
to  said  real  property;  that  the  said  defendants  be  compelled  to  sur- 
render up  the  aforesaid  pretended  deeds  and  certificates  of  acknowl- 
edgment for  cancelation,  and  that  the  same  be  canceled  under  the 
direction  of  the  court ;  that  the  said  estate  of  said  James  G.  Fair, 
deceased,  may  be  decreed  to  be  the  lawful  owner  in  fee-simple  of 
said  described  premises,  and  every  part  and  parcel  thereof,  as  against 
the  said  defendants  and  each  of  them ;  that  defendants  have  not,  nor 
has  either  of  them,  any  right,  title,  interest,  claim,  or  demand  of  any 
nature  or  description  against  said  described  premises  or  any  portion 
thereof;  that  these  plaintiffs,  as  executors  of  the  last  will  and  testa- 
ment of  said  James  6.  Fair,  deceased,  are  lawfully  in  possession  of 
said  described  premises,  and  every  part  and  parcel  thereof,  and  law- 
fully entitled  to  collect  the  rents,  issues,  and  profits  thereof,  as  such 
executors,  and  that  the  defendants,  and  each  of  them,  and  all  persons 
claiming  under  them,  be  forever  enjoined  and  restrained  from  assert- 
ing or  pretending  to  have  any  estate,  right,  title,  or  interest  in  said 
described  premises,  or  any  part  or  portion  thereof,  and  from  inter- 
fering with  the  possession  thereof;  and  for  such  other  and  further 
relief,  or  both,  in  the  premises  as  may  be  just  and  agreeable  to  equity. 

Pierson  &  Mitchell, 
Garret  "W.  McEnerney, 
Attorneys  for  plaintiffs. 
f  Verification.1 


Ch.  CXXXII.]  ANSWER.— FORMS.  1799 

§466.     ANSWER. 

FORM   No.  1081 — Defense  that  instrument  was  executed  under  undue  influ- 
ence.— Action  to  cancel  deed. 

(In  Hemenway  v.  Abbott,  8  Cal.  App.  450;  97  Pac.  190.) 
[Title  of  court  and  cause.] 

The  defendant,  for  answer  to  the  plaintiffs'  complaint,  denies  and 
alleges  as  follows: 

1-10.  [The  answer  here  specifically  denies  the  allegations  in  the 
complaint,  either  directly  or  upon  information  and  belief,  as  to 
plaintiff's  being  heirs  at  law  of  the  decedent  grantor  to  defendant; 
as  to  the  infirmities  of  said  decedent,  his  mental  weaknesses,  etc. ;  as 
to  the  alleged  influence  exercised  upon  decedent's  mind  and  will  in 
procuring  a  deed  to  his  property;  as  to  the  consideration  named  in 
the  deed  being  fictitious,  and  that  the  same  was  afterwards  returned 
by  decedent  to  defendant ;  as  to  any  trust  or  trusts  created  thereby ; 
as  to  exercise  of  undue  influence,  fraud,  importunities,  or  duress ;  as 
to  title  in  defendant  being  a  mere  naked  legal  title,  "but  on  the  con- 
trary the  defendant  alleges  that  the  defendant  has  a  good  title,  legal 
and  equitable,  to  said  lands  and  premises,  and  every  part  thereof"; 
as  to  title  of  defendant  being  illegal  or  void.] 

11.  That  the  said  deed  was  made,  executed,  and  delivered  by  said 
George  W.  Proctor,  since  deceased,  on  the  5th  day  of  May,  1904, 
without  any  undue  or  any  influence  whatever  being  exercised  by  this 
defendant  upon  said  George  W.  Proctor,  and  was  made,  executed, 
and  delivered  for  the  purpose  of  conveying  to  this  defendant  all  of 
the  property  therein  described  in  fee-simple  absolute. 

Wherefore,  defendant  prays  judgment:  That  the  plaintiff  take 
nothing  by  this  action ;  that  the  adverse  claims  of  the  plaintiff  to 
the  said  real  property  described  in  the  complaint  be  determined  by 
the  judgment  of  this  court,  and  that  by  said  judgment  it  be  decreed 
that  the  said  deed  made  by  said  George  "W.  Proctor  to  the  defend- 
ant is  good  and  valid;  that  the  plaintiff  has  no  estate  or  interest 
whatever  in  or  to  the  lands  or  premises  described  in  said  complaint 
either  as  administratrix  with  the  will  annexed  of  the  estate  of  said 
George  W.  Proctor,  deceased,  or  otherwise,  and  that  the  title  of  the 
defendant  thereto  is  good  and  valid,  and  that  the  plaintiff  be  for- 
ever enjoined  and  restrained  from  asserting  any  claim  whatever  in 
and  to  the  said  lands  and  premises  adverse  to  the  defendant;  that  the 


1800  CANCELATION  OF  INSTRUMENTS.  [Tit.  XVI. 

defendant  have  such  other  and  further  relief  as  may  be  proper  in 

the  premises,  and  recover  her  costs  herein. 

Charles   G.   Lamberson,  and 

Frank  Lamberson, 

,TT     .„     J#      ,  Attorneys  for  defendant. 

[Verification.] 

§467.     JUDGMENTS  [OR  DECREES]. 

FORM   No.  1082 — Confirming  deed,  and  quieting  defendant's  title  thereunder. 

— Action   to  cancel   deed  alleged  to   have   been   executed 

under  undue  influence. 

(In  Hemenway  v.  Abbott,  8  Cal.  App.  450;  97  Pac.  190.) 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  for  trial,  before  the  court,  without 
a  jury,  on  the  18th  day  of  September,  1906.  Messrs.  Lippitt  &  Lip- 
pitt  appeared  as  attorneys  for  the  plaintiff,  and  Charles  G.  Lamber- 
son appeared  as  attorney  for  the  defendant;  and  the  court  having 
heard  the  testimony,  and  having  examined  the  proofs  offered  by  the 
respective  parties,  the  cause  having  been  argued  by  briefs  submitted 
by  the  respective  parties,  and  the  court  being  fully  advised  in  the 
premises,  and  having  filed  herein  its  findings  of  fact  and  conclusions 
of  law,  and  having  directed  that  judgment  be  entered  in  accordance 
therewith;  now,  therefore,  by  reason  of  the  law  and  findings  afore- 
said: 

It  is  hereby  ordered,  adjudged,  and  decreed :  That  the  plaintiff 
take  nothing  by  this  action;  that  the  deed  made  by  George  "W. 
Proctor  to  defendant,  set  out  in  the  complaint  herein,  is  good  and 
valid;  that  the  plaintiff  has  no  estate  or  interest  whatever  in  or  to 
the  lands  and  premises  described  in  the  complaint  herein,  to  wit: 
[Here  follows  description  of  said  property] ,  either  as  administratrix 
with  the  will  annexed  of  the  estate  of  said  George  W.  Proctor,  de- 
ceased, or  otherwise,  and  that  the  title  thereto  is  good  and  valid; 
that  the  plaintiff  be  and  she  is  forever  enjoined  and  restrained  from 
asserting  any  claim  whatever  in  or  to  the  said  lands  and  premises 
adverse  to  the  defendant ;  that  the  defendant  have  judgment  against 
the  plaintiff  for  her  costs  herein  expended,  hereby  taxed  at  the  sum 
of  $ 
Dated,  December  13,  1906. 

M.  L.  Short, 
Judge  of  Superior  Court. 


Ch.  CXXXII.]         JUDGMENTS   [OR  DECREES].— FORMS.  1801 

FORM    No.   1083 — Annulling  deed,  and  quieting  plaintiff's  title  as  against  the 
same. — Action  for  cancelation  of  forged  deed. 

(In  Angus  v.  Craven,  132  Cal.  691;  64  Pac.  1091.) 

[Title  of  court  and  cause.] 

This  cause  having  been  regularly  called  and  tried  before  the  court 
sitting  as  a  court  of  equity  upon  the  equitable  issues  raised  herein 
by  the  answer  of  the  plaintiffs  filed  March  8,  1897,  the  cross-com- 
plaint of  the  defendant  Nettie  R.  Craven,  filed  February  26,  1897, 
and  upon  the  equitable  issues  joined  herein  between  the  intervener, 
Virginia  Fair,  and  the  defendant  in  said  intervention,  Nettie  R. 
Craven;  the  defendants  George  R.  Williams,  Stephen  Roberts,  and 
Elizabeth  Haskins  having  filed  herein  their  written  disclaimer,  dis- 
claiming any  interest  of  any  nature  or  description  in  or  to  the  prem- 
ises described  in  the  complaint  herein,  or  any  part  thereof;  default 
of  the  defendant  Marc  Livingston  having  been  duly  entered  of  record 
for  failure  to  appear  or  answer  to  the  complaint  of  the  plaintiffs 
herein,  and  the  default  of  the  defendants  Elizabeth  Haskins,  Stephen 
Roberts,  George  R.  Williams,  and  Marc  Livingston,  for  failure  to 
answer  to  the  complaint  in  intervention  having  been  duly  entered 
of  record,  and  the  action  having  been  dismissed  as  to  the  defendants 
sued  under  the  fictitious  names  of  John  Doe,  Richard  Roe,  Jane 
Doe,  and  Mary  Roe,  and  the  court  having  made  and  rendered  its 
decision,  and  the  findings  of  fact  and  conclusions  of  law  having 
been  filed  herein,  whereupon  the  plaintiffs  and  the  intervener  were 
awarded  a  decree  that  the  deeds  and  the  certificates  of  acknowledg- 
ment attached  thereto,  referred  to  in  said  findings,  and  the  records 
thereof,  are  null  and  void,  and  removing  the  same  as  a  cloud  upon 
title,  and  that  the  said  defendant  Nettie  R.  Craven  has  no  right, 
title,  interest,  claim,  or  demand  of  any  nature  against  the  premises 
described  in  said  findings,  or  any  portion  thereof,  and  that  the  said 
defendant  Nettie  R.  Craven  is,  and  all  persons  claiming  through  or 
under  her  are,  forever  debarred,  restrained,  and  enjoined  from 
asserting  or  pretending  that  the  alleged  deeds  are,  or  either  of  them 
is,  valid  or  genuine,  and  from  claiming  or  asserting  any  right  or 
title  to  the  said  premises,  or  any  part  thereof,  under  said  deeds,  or 
either  of  them,  and  further  awarding  to  the  plaintiffs  and  inter- 
vener a  judgment  for  their  costs. 

It  is  now  further  hereby  ordered,  adjudged,  and  decreed,  that 
the  said  deeds  and  the  said  certificates  of  acknowledgment  referred 


1802  CANCELATION  OF  INSTRUMENTS.  [Tit.  XVI. 

to  in  the  pleadings  herein  and  in  said  findings,  and  the  records 
thereof,  are,  and  each  of  them  is,  null  and  void,  and  that  the  same 
be  and  they  are  hereby  removed  as  a  cloud  upon  the  title  to  the 
property  described  in  said  findings;  that  the  defendant  Nettie  R. 
Craven  has  no  right,  title,  or  interest  in,  nor  any  claim  or  demand 
of  any  nature  or  description  against,  the  said  described  premises  or 
any  part  thereof,  and  that  all  persons  claiming  through  or  under 
her  be  and  they  hereby  are  forever  debarred,  restrained,  and  enjoined 
from  asserting  or  pretending  that  said  alleged  deeds  are,  or  either 
of  them  is,  valid  or  genuine,  or  from  claiming  or  asserting  any  right 
or  title  to  the  said  premises,  or  any  part  thereof,  under  the  said 
deeds,  or  either  of  them. 

Said  premises  are  bounded  and  described  as  follows,  lying  and 
being  in  the  city  and  county  of  San  Francisco:  [Here  follows 
description  of  said  property  as  the  same  appears  in  the  complaint.] 

And  it  is  hereby  further  ordered,  adjudged,  and  decreed,  that 
the  plaintiffs  and  intervener  do  have  and  recover  their  costs  herein, 
taxed  at  $3,849.50,  against  the  defendant  Nettie  R,  Craven. 

Dated  December  1,  1897. 

Charles  "W.  Slack,  Judge. 

§467.     ANNOTATIONS. 

Cancelation  distinguished  from  reformation. — Pleading. — A  distinction  must  be 
observed  between  suits  for  reformation  and  suits  for  cancelation  and  rescission  of 
a  contract.  In  the  former  suits  there  must  be  shown  not  a  mere  mistake  on  one 
side,  but  a  mutual  mistake,  or  what  is  equivalent  in  the  law  to  a  mutual  mistake, 
and,'  in  addition,  an  enforceable  contract  of  the  tenor  and  terms  sought  to  be  estab- 
lished by  the  suit  for  reformation.  On  the  other  hand,  cancelation  or  rescission  pro- 
ceeds upon  the  ground  that  there  is  no  contract  between  the  parties  by  reason  of 
the  mistake  or  fraud.  Relief  on  evidence  showing  mistake  may  be  had  under  a  bill, 
the  gravamen  of  which  is  fraudulent  representation  and  undue  influence,  although 
the  bill  does  not  denominate  the  transaction  as  being  one  produced  by  mistake: 
Moehlenpah  v.  Mayhew,  138  Wis.  561,  119  N.  W.  826,  830;  Kyle  v.  Fehley,  81  Wis.  67, 
51  N.  W.  257,  29  Am.  St.  Rep.  866. 

Parties. — In  an  action  to  cancel  a  deed  of  trust,  beneficiaries  are  not  necessary 
parties  defendant,  since  their  interest  is  fully  represented  by  the  trustee:  Watkins 
v.  Bryant,  91  Cal.  492,  27  Pac.  775. 


TITLE  XVII. 

Miscellaneous  Civil  Proceedings. 

Page 

Chapter  CXXXIII.     Summons  and  Citation. — Jurisdiction ....  1803 
CXXXIV.     Change  of  Place  of  Trial  or  Venue,  Gen- 
erally.— Removal  of  Causes  to  Federal 

Courts   1812 

CXXXV.     Appearance  and  Default,  and  Substitution 

of  Attorneys 1823 

CXXXVI.     Notices,  Motions,  and  Orders 1828 

CXXXVII.     Affidavits,  Depositions,  and  Stipulations.  .  1836 
CXXXVIII.     Inspection  of  Writings,  and  Bill  of  Par- 
ticulars    1850 

CXXXIX.     Trials,    Witnesses,    and    Proceedings    for 

Contempt 1853 

CXL.     Nonsuit  and  Dismissal 1867 

CXLI.     Findings  and  Judgment 1871 

CXLII.     Costs,  Executions,  and  Writs 1886 

CXLIII.     New  Trials,  Appeals  [and  Writs  of  Error]  1902 

CXLIV.     Certification  of  Public  Records 1937 


CHAPTER  CXXXIII. 

Summons  and  Citation. — Jurisdiction. 

Page 

5  469.  Summons 1804 

Form  No.  1084.  Judgment  demanded  .    (California.) 1804 

Form  No.  1085.  Alternative  relief.     (California.) 1804 

§  470.  Certificates,  orders,  etc 1805 

Form  No.  1086.  Sheriff's    certificate    of   service    of   summons. 

(Endorsed  on  original  summons.) 1805 

Form  No.  1087.  Notice   of  motion   to   quash   summons   or   its 

service   1805 

Form  No.  1088.  Order  extending  time  to  answer  after  decision 

on  motion  to  quash  1806 

Form  No.  1089.  Affidavit  as  basis  of  order  for  service  by  pub- 
lication       1806 

S  471.  Citations,  orders,  etc 1807 

Form  No.  1090.  Citation.     (Common  form.)    1807 

Form  No.  1091.  Order  for  citation  to  executor  upon  applica- 
tion by  creditor 1807 

Form  No.  1092.  Acknowledgment  of  service  of  citation 1808 

(1803) 


1804  SUMMONS  AND  CITATION.  [Tit.  XVII. 

Form  No.  1093.  Citation  to  executor  and  surviving  widow  ta 
show  cause  why  family  allowance  should 
not  be  reduced 1808 

Form  No.  1094.  Order  sustaining  demurrer  to  petition  and  dis- 
charging citation 1809 

§  472.  Annotations 1S10 


§469.     SUMMONS. 

FORM   No.  1084 — Judgment  demanded.     (California.) 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  California  send  greeting  to  , 

defendant : 

You  are  hereby  directed  to  appear  and  answer  the  complaint  in 

an  action  entitled  as  above,  brought  against  you  in  the  superior 

court  of  the  state  of  California,  in  and  for  the  county  of  ,  within 

days  after  the  service  on  you  of  this  summons,  if  served 

within  this  county,  or  within  thirty  days,  if  served  elsewhere. 

*And  you  are  hereby  notified  that  unless  you  so  appear  and 
answer  as  above  required,  the  plaintiff  will  take  judgment  for  the 
sum  of  $  as  demanded  in  the  said  complaint,  as  arising  upon 

contract,  and  for  costs.* 

Given  under  my  hand  and  the  seal  of  the  superior  court  of  the 
state  of  California,  in  and  for  the  county  of  ,  this  day 

of  ,  19     . 

[Seal.]  C.  D.,  Clerk. 

By  E.  F.,  Deputy  Clerk. 

[Endorsed  with  name  of  the  attorney  for  the  plaintiff,  and,  if 
served  and  returned,  with  certificate  as  in  form  No.  1086,  or  affidavit 
as  in  form  No.  1139,  and  date  of  filing.] 

FORM   No.  1085— Alternative  relief.     (California.) 

[Title  of  court  and  cause.] 

[As  in  preceding  form,  except  in  the  place  of  the  paragraph 
starred  thus  (*  *)  insert  the  following  paragraph:] 

*  And  you  are  hereby  notified  that  unless  you  so  appear  and 
answer  as  above  required,  the  plaintiff  will  take  judgment  for  any 
money  or  damages  demanded  in  the  complaint  as  arising  upon  con- 
tract, or  will  apply  to  the  court  for  any  other  relief  demanded  in  the 
complaint  [etc.].* 


Ch.  CXXXIII.]         CERTIFICATES,  ORDERS.  ETC.— FORMS.  1805 

Statutory  provisions  as  to  process. — Each  of  the  code  states  prescribes  either  the 
form  or  the  substance  of  the  summons  and  all  processes  upon  which  jurisdiction  is 
founded.  Space  will  not  permit  the  correlation  of  these  statutes,  but  it  may  be  gen- 
erally said  that  the  above  forms  of  summons  are  representative  of  the  forms  pre- 
scribed in  most  of  the  states  covered  by  this  work.  In  all  instances,  however,  the 
statutory  forms,  where  prescribed,  should  be  used,  and  the  statutory  provisions 
carefully  observed.  Under  the  procedure  in  some  states,  the  summons  is  issued 
upon  a  praecipe,  or  request  in  writing  directed  to  the  clerk  for  the  issuance  thereof. 
The  Iowa  code  (§  3514)  provides  that  the  plaintiff  may  give  a  notice  to  the  defend- 
ant before  complaint  (or  petition)  is  filed,  to  the  following  effect:  "That  on  or 
before  a  certain  day  [naming  it]  a  petition  will  be  filed  in  the  office  of  the  clerk  of 
the  district  court  of  the  state  of  Iowa,  in  and  for  the  county  of  ,  claiming  of 

you  the  sum  of  $  ,   as  justly  due  the  plaintiff  on   [here  stating  the  nature  of 

the  obligation],  and  that  unless  you  appear  thereto  and  defend  before  noon  of  the 
second   day  of   the   term    [naming   it]    of   said   court,    which   will   commence   on   the 
day  of  ,    19     ,   at   the   courthouse   in   the   county  of  ,   state   of  Iowa, 

default  will  be  entered  against  you  and  judgment  [or  decree]  rendered  thereon. 

"[Signature  of  the  plaintiff  or  his  attorney.]" 

§470.     CERTIFICATES,  ORDERS,  ETC. 

FORM   No.  1086 — Sheriff's  certificate  of  service  of  summons.     (Endorsed  or 
original   summons.) 

Sheriff's  office, 


County  of 

I  hereby  certify,  that  I  received  the  within  summons  on  the 
day  of  ,  19     ,  and  personally  served  the  same  on  the  day 

of  ,  19     ,  on  ,  being  the  defendant  named  in  said 

summons,  by  delivering  to  him,  the  said  defendant,  personally,  in 
the  county  of  ,  a  copy  of  said  summons,  and  a  copy  of  the 

complaint  in  the  action  therein  mentioned,  which  was  attached 
thereto,  and  by  then  and  there  exhibiting  to  defendant  the  within 
original  summons  in  said  action. 

[Date.]  M.  N.,  Sheriff. 

0.  P.,  Deputy  Sheriff. 

Sheriff's  fee,  $ 

FORM   No.  1087 — Notice  of  motion  to  quash  summons  or  its  service. 

[Title  of  court  and  cause.] 

To  ,  attorney  for  plaintiff : 

Please  take  notice,  that  defendant,  appearing  for  this  and  no  other 
purpose,  will  move  the  court  at  the  courtroom  [department  No.  ] 
thereof,  on  the  day  of  ,  19     ,  at  o'clock        M.,  or  as 

soon  thereafter  as  counsel  can  be  heard,  to  quash  the  summons  in 
this  action  [or  to  set  aside  the  alleged  service  of  the  summons  in 
this  action!,  and  for  an  order  quashing  [or  setting  aside]  said  alleged 


1806  SUMMONS  AND  CITATION.  [Tit.  XVII. 

service,  on  the  ground  that  said  summons  is  defective  [or  on  the 
ground  that  the  service  of  the  summons  was  not  properly  made]. 
Said  motion  will  be  based  on  the  summons  in  the  action  [or  on  the 
summons  and  the  evidence  of  the  alleged  service  thereof,  endorsed 
on,  or  attached  to,  said  summons,  and  (if  used)  on  affidavits,  copies 
of  which  are  attached  to  this  notice  and  served  herewith]. 

[Date.]  A.  B.,  Attorney  for  defendant,  for  the 

purpose  of  said  motion  only. 

FORM   No.  1088 — Order  extending  time  to  answer  after  decision  on   motion 
to  quash. 

(In  Anderson  v.  Schloesser,  153  Cal.  219;  94  Pac.  885.) 
[Title  of  court  and  cause.] 

The  above-named  defendant  having  made  a  special  appearance  in 
the  above-entitled  action  for  the  purpose  of  moving  the  court  to 
quash  summons,  it  is  ordered  that  he  be  and  he  is  hereby  granted 
ten  days'  time  after  decision  on  said  motion  within  which  to  serve 
and  file  his  demurrer  or  answer  in  said  action. 

Dated  March  9,  1905.  F.  A.  Kelley, 

Judge  of  Superior  Court. 

FORM   No.  1089 — Affidavit  as  basis  of  order  for  service  by  publication.! 
(In  Bantley  v.  Finney,  43  Neb.  794;  62  N.  W.  213.) 
[Title  of  court  and  cause.] 
State  of  Nebraska, 


Lancaster  County. 

J.  R.  Webster,  being  first  duly  sworn,  on  his  oath  says :  I  am  the 
attorney  of  record  of  Richard  C.  Mc Williams,  plaintiff  in  the  above- 
entitled  cause.  On  the  19th  day  of  July,  1882,  said  plaintiff  filed  a 
petition  in  the  district  court  of  Lancaster  County  against  Gotlieb 
Bantley,  the  object  and  prayer  of  which  is  to  enforce  a  specific 
performance  of  a  written  contract  for  the  sale  of  certain  premises 
described  as  the  southeast  quarter  of  section  24,  township  10  north, 
of  range  7  east,  of  sixth  principal  meridian,  made  and  entered  into 

l  The  affidavit  in  form  No.  10S9  is  held  to  contain  all  the  averments  of  fact  neces- 
sary to  authorize  the  plaintiff  to  make  service  upon  the  defendant  by  publication, 
and  give  the  court  jurisdiction  of  the  defendant,  if  such  service  by  publication 
should  be  made  as  provided  by  sections  79  and  80  of  the  Nebraska  Code  of  Civil 
Procedure:    Bantley  v.  Finney,  43  Neb.  794,  63  N.  W.  213,  214. 


Ch.  CXXXIII.]  CITATIONS,  ORDERS,  ETC.— FORMS.  ]8UT 

by  and  between  the  said  defendant,  as  vendor,  by  J.  P.  Walton,  his 
agent  duly  authorized  in  writing,  and  said  plaintiff,  as  vendee,  on  or 
about  the  15th  day  of  June,  1882,  for  sale  of  said  premises,  at  the 
price  of  $2,400,  exclusive  of  agent's  commission,  $800  payable  in 
hand,  $533  1/3  on  or  before  two  years,  and  two  like  sums  on  or 
before  three  and  four  years,  respectively,  with  interest  at  the  rate 
of  seven  per  cent  per  annum,  to  be  secured  by  mortgage  on  said 
premises ;  that  said  plaintiff  is  absent  from  the  county  of  Lancaster, 
and  affiant  makes  this  affidavit  in  his  behalf  for  that  reason  ;  that  said 
defendant  is  a  non-resident,  and  resides  at  Johnstown,  in  the  state 
of  Pennsylvania,  and  is  absent  from  the  state  of  Nebraska,  and 
service  of  summons  can  not  be  made  within  the  state  on  him ;  where- 
fore the  plaintiff  prays  for  service  by  publication. 

J.  R.  Webster. 
[Jurat.] 

§471.     CITATIONS,  ORDERS,  ETC. 

FORM   No.  1090 — Citation.     (Common  form.) 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  ,  greeting : 

By  order  of  this  court,  you  are  hereby  cited  and  required  to  appear 
before  this  court,  at  the  courtroom  of  department  No. 

thereof,  at  ,  in  said  county  of  ,  on  , 

the  day  of  ,  19     ,  at  o'clock  in  the  noon  of 

the  day,  then  and  there  to  [here  state  nature  of  matter  concerning 
which  appearance  is  required  or  testimony  to  be  given]. 

Witness  the  Hon.  ,  of  our  court 

in  and  for  the  said  county  of  ,  with  the 

seal  of  said  court  affixed,  this  day  of 

,19     . 
Attest:  C.  D.,  County  Clerk. 

[Seal.]  By  E.  F.,  Deputy  Clerk. 

FORM   No.  1091 — Order  for  citation  to  executor  upon  application  by  creditor. 

[Title  of  court  and  cause.] 

M.  N.,  being  a  creditor  of,  and  the  person  interested  in,  the  estate 
of  L.  M.,  deceased,  having  this  day  presented  to  this  court,  and  filed 
herein,  his  petition  praying  that  X.  Y.,  as  executor  of  the  last  will  of 
L.  M.,  deceased,  be  required  by  the  court  to  appear  and  render,  for 


1808  SUMMONS  AND  CITATION.  [Tit.  XVIL. 

the  information  of  this  court,  an  exhibit  under  oath  showing  the 
debts  and  liabilities  of  the  estate  of  said  L.  M.,  deceased,  and  the 
assets  and  property  belonging  to  said  estate,  and  the  condition 
thereof,  and  of  the  matters  and  things  necessary  or  proper  for  the 
purpose  of  showing  the  condition  of  the  affairs  of  said  estate ;  and 
this  court,  being  satisfied  that  the  facts  alleged  in  said  petition  are- 
true,  and  considering  and  deeming  the  showing  made  by  said  appli- 
cant and  petitioner  sufficient  to  justify  this  court  in  granting  the 
prayer  of  said  petition : 

It  is  now  hereby  ordered  and  directed,  that  a  citation  be  forthwith 
issued  requiring  and  directing  the  said  X.  Y.,  as  executor  of  the 
last  will  of  L.  M.,  deceased,  to  appear  in  this  court  in  the  courtroom 
of  department  thereof,  at  ,  on  ,  19     ,  then 

and  there  to  render  to  this  court,  and  on  that  day  to  file  herein,  an 
exhibit  and  statement  under  oath,  showing  and  setting  forth  the 
following  matters  and  things  to  wit:  [Here  state  as  to  facts  and 
reports  to  be  presented.] 

It  is  further  hereby  ordered,  that  a  copy  of  this  order,  and  of  the 
citation  aforesaid,  be  served  upon  said  executor  at  least  days 

before  the  date  of  said  hearing. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1092 — Acknowledgment  of  service  of  citation.     (Annexed  to  cita- 
tion.) 

[Title  of  court  and  cause.] 

Service  of  a  copy  of  the  within  citation,  and  also  of  a  copy  of  the 
order  to  show  cause,  pursuant  to  which  said  citation  was  issued,  and 
of  a  copy  of  the  petition  mentioned  in  said  citation,  is  hereby 
admitted  this  29th  day  of  June,  1899.        [Signature  of  executor.] 

FORM   No.  1093 — Citation  to  executor  and   surviving   widow  to  show  cause 
why  family  allowance  should  not  be  reduced. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  X.  Y.,  as  executor  of  the  last 

will  of  L.  M.,  deceased,  and  to  T.  M.,  widow  and  surviving  wife  of 
said  L.  M.,  deceased,  greeting: 

You  are  hereby  cited  to  be  and  appear  in  our  court  of  the 

county  of  ,  at  the  courtroom  thereof,  department  ,  at 

,  in  the  city  of  ,  county  of  ,  on  ,  the 


Ch.  CXXXIII.]  CITATIONS,  ORDERS,  ETC.— FORMS.  1809 

day  of  ,19     ,  at  o'clock        M.  of  that  day,  then  and 

there  to  answer  the  petition  of  R.  M.,  as  trustee  [or  heir  at  law  and 
devisee,  etc.]  under  the  last  will  of  L.  M.,  deceased,  praying  for  a 
modification  of  the  order  herein  made  on  the       day  of  ,  19     , 

fixing  a  family  allowance  of  $  ,  to  said  T.  M.,  and  that  the 

allowance  heretofore  made  and  directed  to  be  paid  out  of  the  estate 
of  said  L.  M.,  deceased,  be,  by  order,  modified  and  reduced  in  the 
following  respect:  [Here  state.]  A  copy  of  said  petition  is  here- 
with served  upon  you.  And  you  are  required  to  then  and  there 
show  cause,  if  any  you  have,  why  the  prayer  of  said  petition  should 
not  be  granted. 

By  order  of  our  court,  in  the  county  of  ,  this        day 

of  ,  19     . 

[Seal.]  W.  D.,  Clerk. 

By  M.  N.,  Deputy  Clerk. 

FORM   No.  1094 — Order  sustaining  demurrer  to  petition  and  discharging  cita- 
tion. 

[Title  of  court  and  cause.] 

The  petition  of  M.  N.,  a  creditor,  for  a  citation  against  T.  M., 
widow  of  said  L.  M.,  deceased,  to  show  cause  why  the  family 
allowance  under  orders  heretofore  made  should  not  be  reduced, 
having  been  filed  herein  on  the  day  of  ,  19     ,  and 

citation  having  been  duly  issued  thereon  and  served  on  T.  M., 
and  she  having  made  and  filed  herein  her  return  or  answer  to 
said  citation,  and  part  of  said  answer  being  the  demurrer  to  the  said 
petition  of  said  M.  N.,  and  the  matter  coming  on  regularly  for  hear- 
ing this  day  of  ,  19  ,  and  the  demurrer  of  said  T.  M.  to 
said  petition  having  been  argued  by  counsel  for  the  respective 
parties,  was  submitted  to  the  court  for  decision ;  and  the  court  being 
fully  advised  in  the  premises: 

It  is  hereby  ordered,  that  the  said  demurrer  to  said  petition  be 
and  the  same  is  hereby  sustained,  and  the  said  T.  M.,  is  hereby  dis- 
charged from  said  citation  and  said  citation  is  hereby  dismissed. 

[Date.]  S.  T.,  Judge. 

Form  of  return  endorsed  on  a  summons  in  an  action  to  recover  balance  due  for 
manufacturing,  furnishing,  and  erecting  certain  machinery  for  the  reduction  of 
ores:  Colorado  Iron- Works  v.  Sierra  Grande  Min.  Co.,  15  Colo.  499,  504,  25  Pac.  325, 
22  Am.  St.  Rep.  433. 


1810 


SUMMONS  AND  CITATION. 


[Tit.  XVII. 


§472.     ANNOTATIONS. — Summons  and  citation. — Jurisdiction. 


1.  General  jurisdiction  of  state  courts  coextensive  with  its  sovereignty. 

2.  Essentials  of  jurisdiction. 

3.  Consent  as   conferring  jurisdiction. 

4,  5.  Consenting  or  agreeing  to  a  continuance. 

6.  Answer  praying  for  affirmative  relief. 

7.  Jurisdiction  to  render  personal  judgment 

8.  Non-resident  debtors. 

9.  Local  actions. 

10.  Transitory  actions. 
11,  12.  Government  as  party.— Jurisdiction  of  state  courts. 

'  13.  Entry  of  judgment  terminates  jurisdiction. 
14,  15.  Publication  of  notice. 

16.  Purpose  of  affidavit  for  service  by  publication. 

17.  Defective  service  waived  by  answering  over. 

18.  Time  to  answer  pending  motion  to  quash  service. 

19.  Signification  of  word  "process." 

20.  Process  under  Kansas  statute. 


1.  General  jurisdiction  of  the  courts  of 
a  state  is  coextensive  with  its  sover- 
eignty, and  attaches  to  all  the  property 
and  persons  within  the  limits  thereof: 
State  ex  rel.  Mackey  v.  District  Court, 
40  Mont.  359,   106  Pac.   1098,  1101. 

2.  Essentials  of  jurisdiction.— Jurisdic- 
tion may  be  defined  as  the  right  to  ad- 
judicate the  subject-matter  in  a  given 
case.  To  constitute  this  there  are  three 
essentials:  First,  the  court  must  have 
cognizance  of  the  class  of  cases  to 
which  the  one  to  be  adjudged  belongs; 
second,  the  proper  parties  must  be  be- 
fore the  court;  and  third,  the  point  de- 
cided must  be  in  substance  and  effect 
within  the  issues:  Robinson  v.  Levy, 
21/  Mo.  498,  117  S.  W.  577,  582,  quoting 
from  and  approving  Munday  v.  Vail,  34 
N.  J.  L.  422. 

3.  Consent  as  conferring  jurisdiction. 
—Consent  can  not  confer  jurisdiction  of 
the  subject-matter,  but  it  may  confer 
jurisdiction  of  the  person:  Maxwell  v. 
Frazier,  52  Ore.  183,  96  Pac.  548,  550,  18 
L.  R.  A.  (N.  S.)  102,  quoting  the  rule 
stated  in  12  PI.  &  Pr.  126. 

4.  Consenting  or  agreeing  to  a  con- 
tinuance of  a  cause  from  one  term  to 
another  operates  as  a  waiver  to  the 
same  effect,  and  confers  complete  juris- 
diction: Baisley  v.  Baisley,  113  Mo.  544, 
21  S.  W.  29,  35  Am.  St.  Rep.  726;  Peters 
v.  St.  Louis  etc.  R.  Co.,  59  Mo.  406;  Seay 
v.  Sanders,  88  Mo.  App.  478. 

5.  Agreeing  to  reset  a  cause  is  like- 
wise a  waiver,  and  confers  jurisdiction: 
Columbia  Brewery  Co.  v.  Forgey,  140 
Mo.  App.  605,  120  S.  W.  625,  628. 


6.  Answer  praying  for  affirmative  re- 
lief.— The  defendant  waives  his  right  to 
object  to  the  jurisdiction  of  the  court 
when  he  has  answered  without  objection 
to  the  jurisdiction,  and  has  claimed  af- 
firmative relief:  Kitcherside  v.  Myers, 
10  Ore.  21;  Municipal  Security  Co.  v. 
Baker  Co.,  33  Ore.  338,  54  Pac.  174; 
O'Hara  v.  Parker,  27  Ore.  156,  39  Pac. 
1004;  Killgore  v.  Carmichael,  42  Ore. 
618,  72  Pac.  637. 

7.  Jurisdiction  to  render  personal  judg- 
ment.— A  personal  judgment  in  an  ac- 
tion in  personam  can  only  be  had  after 
personal  service  of  the  defendant  or  his 
voluntary  appearance  in  the  action. 
Constructive  service,  such  as  service  by 
publication,  is  ineffectual  for  this  pur- 
pose: Silver  Camp  Min.  Co.  v.  Dickert, 
31  Mont.  488,  78  Pac.  967,  67  L.  R.  A. 
940,  3  Am.  &  Eng.  Ann.  Cas.  1000. 

8.  Non-resident  debtors.  —  Statutory 
requirements  for  obtaining  jurisdiction 
of  non-resident  debtors,  and  for  attach- 
ment of  property  within  the  territorial 
jurisdiction  of  the  court,  which  require- 
ments are  in  derogation  of  the  common- 
law  mode  of  personal  service,  must  be 
strictly  complied  with.  Unless  this  is 
done  in  the  case  of  such  non-resident 
debtors  who  do  not  appear,  the  court 
acquires  no  jurisdiction  for  any  purpose 
whatever  as  against  them  or  their  prop- 
erty. Even  in  proceedings  in  rem 
against  the  property  of  non-resident 
debtors  the  requirements  as  to  publica- 
tion or  citation  as  expressly  provided  by 
law  must  be  observed,  whereby  they 
may  have  their  day  in  court;  otherwise, 
the    court    will    acquire    no    jurisdiction 


Ch.  CXXXIII.] 


ANNOTATIONS. 


1811 


or  authority  to  adjudge  a  sale  of  their 
property  to  satisfy  their  debts:  Smith 
v.  Montoya,  3  N.  Mex.  40,  1  Pac.  175. 

9.  Local  actions,  such,  for  example,  as 
those  relating  to  interests  in  lands,  are 
usually  laid  in  the  district  or  the  county 
where  the  subject-matter  lies;  but  tran- 
sitory actions  may  be  tried  wherever 
personal  service  can  be  made  on  the 
defendant:  State  ex  rel.  Mackey  v.  Dis- 
trict Court,  40  Mont.  359,  106  Pac.  1098, 
1101,  construing  Mont.  Rev.  Codes, 
§  6504. 

10.  Transitory  actions. — Actions  for  in- 
juries to  the  person  are  transitory,  and 
follow  the  person;  and  therefore,  so  far 
as  the  nature  of  the  action  is  con- 
cerned, one  foreigner  may  sue  another 
foreigner  in  the  courts  of  a  state  for  a 
tort  committed  in  another  country,  the 
same  as  on  a  contract  made  in  another 
country:  Dewitt  v.  Buchanan,  54  Barb. 
31,  cited  in  State  ex  rel.  Mackey  v.  Dis- 
trict Court,  40  Mont.  359,  106  Pac.  1098, 
1102. 

11.  Government  as  party. — Jurisdiction 
of  state  courts.— Where  the  government 
invokes  the  jurisdiction  of  a  court,  it 
submits  to  that  jurisdiction;  presenting 
a  claim  for  its  adjudication,  it  asks  that 
the  claim  be  adjudicated  upon  its  merits, 
and  allowed  or  rejected  accordingly.  If 
it  sues,  it  is  subject  to  the  defense  of 
offset  upon  the  amount  of  whatever 
claim  it  shall  establish, — a  defense 
which  does  not  controvert  the  claim, 
but  is  in  the  nature  of  a  limited  or 
quasi  cross-suit  against  it,  allowed,  not 
beyond  the  .  extent  of  the  affirmative 
remedy,  but  only  to  the  extent  of  de- 
feating that  claim:  United  States  v. 
McDaniels,  7  Pet.  1,  8  L.  ed.  587; 
United  States  v.  Ripley,  7  Pet.  18,  8  L. 
ed.  593;  United  States  v.  Robeson,  9  Pet. 
319,  9  L.  ed.  142,  cited  in  Union  Pacific 
R.  Co.  v.  United  States,  2  Wyo.  170,  191, 
where  the  proposition  above  stated  as  to 
jurisdiction,  and  the  effect  of  submis- 
sion of  a  controversy  thereto,  is  ap- 
proved, and  application  made  of  a  ter- 
ritorial statute  to  the  measure  of  relief 
where  judgment  goes  against  the  gov- 
ernment. 

12.  The  superior  court  has  jurisdic- 
tion of  an  action  brought  to  recover  a 
statutory  penalty  by  one  who  alleges 
title  in  himself  and  puts  in  issue  by  a 
verified  answer  the  plaintiff's  title,  al- 
though the  amount  involved  is  less  than 
$300    (this    amount    being    the    limit    of 


jurisdiction  In  the  Justice  courts  under 
the  California  statute,  where  the  title  to 
real  property  is  not  drawn  in  question): 
Randolph  v.  Kraemer,  106  Cal.  199,  201, 
39  Pac.  533. 

For  a  specific  averment  in  defense  of 
a  demand  as  a  basis  for  certifying  the 
case  to  a  court  of  higher  jurisdiction, 
see  form  No.  382,  paragraph  3. 

13.  Entry  of  judgment  terminates  jur- 
isdiction of  the  court  in  general:  Los 
Angeles  v.  Lankershim,  100  Cal.  525,  35 
Pac.  153,  556;  Ayres  v.  Burr,  132  Cal. 
125,    64    Pac.    120. 

14.  Publication  of  notice. — It  is  set- 
tled in  the  state  of  California  that 
where  the  statute  requires  that  a  no- 
tice be  published  for  a  designated  num- 
ber of  weeks  in  some  newspaper  pub- 
lished in  the  county,  the  same  is  fully 
satisfied  by  a  publication  once  each 
week  for  the  designated  number  of 
weeks  in  a  daily  newspaper  published 
in  the  county:  Sherwood  v.  Wallin,  154 
Cal.  735,  739,  99  Pac.  191,  citing  People 
v.  Reclamation  Dist.,  121  Cal.  522,  524, 
50  Pac.  1068,  53  Pac.  10S5;  Chapman  v. 
Soberlein,   152  Cal.   216,   92  Pac.   188,   190. 

15.  A  publication  for  fourteen  con- 
secutive days  constitutes  a  publication 
of  "at  least  two  weeks,"  where  the 
requisite  period  of  two  weeks  had  fully 
elapsed  prior  to  the  date  noticed  in  the 
publication  for  the  meeting:  Derby  v. 
Modesto,  104  Cal.  515,  38  Pac.  900.  See 
State  v.  Yellow  Jacket  etc.  M.  Co.,  5 
Nev.  415. 

16.  Purpose  of  affidavit  for  service  by 
publication. — An  affidavit  for  service  by 
publication  is  not  designed  to  convey 
any  information  to  the  defendant  to  be 
served.  Its  purpose  is  to  bring  upon 
the  record  the  statutory  foundation  for 
the  publication  of  a  notice.  When  the 
affidavit  discloses  that  the  action  is  one 
to  foreclose  a  real  estate  mortgage  and 
to  sell  land  under  such  mortgage,  a  suf- 
ficient basis  for  publication  is  estab- 
lished: Sharp  v.  McColm,  79  Kan.  772, 
101  Pac.  659,  660,  citing  Gillespie  v. 
Thomas,  23  Kan.  138,  and  Kan.  Code 
Civ.  Proc,  §§  72,  74,  (Gen.  Stats.  1901, 
§§  4506,   4508). 

17.  Defective  service  waived  by  an- 
swering over. — If  the  defendant  desires 
to  stand  upon  insufficient  service  of  a 
■writ  or  summons,  its  remedy  is  to  move 
specially  to  quash  the  same,  and.  if  the 
motion  be  overruled,  then  to  withdraw 
from   further  appearance;   the   defective 


1812 


CHANGE  OF  VENUE. 


[Tit.  XVII. 


aervice  is  waived  by  a  general  answer 
to  the  jurisdiction  over  the  defendant: 
Eddy  v.  Lafayette,  49  Fed.  809,  1  C.  C. 
A.  441;  Ogdensburgh  R.  Co.  v.  Vermont 
R.  Co.,  63  N.  Y.  176;  Handy  v.  Insurance 
Co.,  37  Ohio  St.  370,  371;  Gilbert  v.  Hall, 

115  Ind.  549,  18  N.  E.  28;  Kronski  v. 
Railroad  Co.,  77  Mo.  362;  Thomasson  v. 
Mercantile    etc.    Ins.    Co.,    217    Mo.    485, 

116  S.  W.  1092,  1095. 

18.  Time  to  answer  pending  motion  to 
quash  service. — Time  to  answer  is  not 
extended  by  and  during  the  pendency 
of  a  motion  to  quash  service  of  sum- 
mons: Garvie  v.  Greene,  9  S.  Dak.  608, 
70  N.  W.  847. 

19.  The  word  "process"  signifies  a 
writ  or  summons  issued  in  the  course 
of  judicial  proceedings.  Under  this 
signification  a  notice  of  appeal  has  been 
held  to  be  not  process:    Gooler  v.   Eid- 


ness  (N.  Dak.),  121  N.  W.  83,  85,  citing 
and  construing  N.  Dak  Rev.  Codes  1905, 
§  6738. 

20.  Process  under  Kansas  statute.— 
Under  the  Kansas  statute,  it  is  pro- 
vided that  the  style  of  process  shall  be: 
"The  state  of  Kansas";  that  the  same 
shall  be  under  the  seal  of  the  court 
from  whence  it  issues;  that  it  shall  be 
signed  by  the  clerk  and  dated  the  day  it 
is  issued.  It  is  held,  however,  that  a 
notice  employed  by  the  attorney  in  ob- 
taining service  by  publication  is  not  a 
process  within  the  meaning  of  the  con- 
stitution or  statute,  and  need  not  bear 
the  style  of  "state  of  Kansas,"  nor  the 
seal  of  the  court  in  which  the  action  is 
pending,  nor  be  signed  or  issued  by  the 
clerk  of  such  court:  McKenna  v. 
Cooper,  79  Kan.  847,  101  Pac.  662,  663. 


CHAPTER  CXXXIV. 


Change  of  Place  of  Trial  or  Venue,  Generally. — Removal  of  Causes  to  Federal 

Courts. 

Page 

§  473.  Procedure  for  change  of  venue  in  state  courts 1813 

Form  No.  1095.  Notice  of  motion  for  change  of  place  of  trial. .  1813 

Form  No.  1096.  Motion  for  change  of  place  of  trial 1814 

Form  No.  1097.  Demand  for  change  of  place  of  trial 1814 

Form  No.  1098.  Affidavit  of  residence  1815 

Form  No.  1099.  Affidavit  of  merits 1815 

Form  No.  1100.  Affidavit    of    residence    and    of    merits    for 

change  of  place  of  trial 1815 

Form  No.  1101.  Petition  for  change  of  venue 1816 

8  474.  Removal  of  cause  from  state  to  federal  court 1817 

Form  No.  1102.  Petition  for  removal  of  cause  from  state  to 
federal  court  on  the  ground  of  diversity  of 

citizenship 1817 

Form  No.  1103.  Petition    for    removal    where    the    action    is 

brought  by  a  citizen  against  an  alien 1818 

Form  No.  1104.  Petition  for  removal  where  a  federal  question 

is  involved    1818 

Form  No.  1105.  Order  of  removal  made  by  state  court 1818 

Form  No.  1106.  Bond  on  removal  of  action  from  state  to  fed- 
eral court    1819 

§  475.  Annotations 1819 


Oh.  CXXXIV.]  IN    STATE   COURTS.— FORMS.  1813 

§473.     PROCEDURE  FOR  CHANGE  OF  VENUE  IN  STATE  COURTS. 
FORM   No.  1095 — Notice  of  motion  for  change  of  place  of  trial. 

(In  Younger  v.  Spreckels,  12  Cal.  App.  175;  106  Pac.  895.) 

[Title  of  court  and  cause.] 

To  Jeannie  H.  Younger,  as  executrix  of  the  last  will  and  testament 
of  Charles  B.  Younger,  deceased,  plaintiff  in  the  above-entitled 
action,  and  to  Charles  B.  Younger,  Esq.,  attorney  for  plaintiff: 

You  will  please  take  notice,  that  the  defendant,  Claus  Spreckels, 
will  move  the  above-entitled  court  at  the  courtroom  thereof  in  the 
county  courthouse  of  the  county  of  Santa  Cruz,  state  of  California, 
on  the  15th  day  of  June,  1908,  at  the  hour  of  ten  o'clock  A.  M.  of 
said  day,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  an  order 
changing  the  place  of  trial  of  the  above-entitled  action  to  the  city 
and  county  of  San  Francisco,  state  of  California,  to  be  tried  in  the 
superior  court  of  the  state  of  California  in  and  for  said  city  and 
county. 

Said  motion  will  be  made  upon  affidavits,  which  are  herewith 
served  upon  you,  and  upon  the  demand  for  change  of  place  of  trial 
served  herewith,  and  upon  the  papers  and  files  in  the  cause,  and  this 
notice,  upon  the  following  grounds : 

That  the  defendant  is  a  non-resident  of  the  county  of  Santa  Cruz, 
state  of  California,  and  that  the  defendant  has  demanded  that  the 
place  of  trial  of  said  action  be  changed  to  the  city  and  county  of 
San  Francisco,  state  of  California,  the  place  of  residence  of  said 
defendant. 

Dated  June  4,  1906.  Charles  S.  Wheeler, 

Attorney  for  defendant. 

I  Acknowledgment  of  service  of  the  foregoing  notice,  and  filing  endorsement.] 

Receipt  of  a  copy  of  the  within  notice  this  5th  day  of  June,  1908, 
is  hereby  admitted. 

Charles  B.  Younger, 

Attorney  for  plaintiff. 
[Endorsed:]     Filed  June  5,  1908. 

H.  H.  Miller,  Clerk. 
By  Harry  E.  Miller, 

Deputy  Clerk. 

Jury's  PL— 115. 


1814  CHANGE  OF  VENUE.  [Tit.  XVIL 

FORM    No.   1096 — Motion  for  change  of  place  of  trial. 

(In  Younger  v.  Spreckels,  12  Cal.  App.  175;  106  Pac.  895.) 

Now  comes  the  defendant  in  the  above-entitled  action,  and  moves 
the  court  that  an  order  be  made  changing  the  place  of  trial  of  the 
above-entitled  action  from  the  county  of  Santa  Cruz,  state  of  Cali- 
fornia, to  the  city  and  county  of  San  Francisco,  state  of  California, 
for  the  following  reasons,  and  upon  the  following  grounds,  to  wit : 

That  defendant,  Claus  Spreckels,  does  not  reside  in  the  county  of 
Santa  Cruz,  state  of  California,  and  at  the  time  of  the  commence- 
ment of  this  action  was,  and  ever  since  has  been,  and  now  is,  a  resi- 
dent of  the  city  and  county  of  San  Francisco,  state  of  California ; 

That  said  defendant  has  filed  herein  with  this  motion  an  affidavit 
of  merits,  and  has  demanded  that  this  action  be  transferred  for  trial 
to  the  city  -and  county  of  San  Francisco,  state  of  California,  and  also 
has  filed  herein  an  affidavit  showing  the  residence  of  said  defendant 
as  above  set  forth,  and  has  served  upon  the  opposing  counsel  notice 
of  this  motion,  which  said  notice  sets  forth  that  this  motion  will  be 
called  for  hearing  on  the  15th  day  of  June,  1908,  at  the  hour  of 
ten  o'clock  A.  M.  of  said  day. 

Dated  June  4,  1908.  Charles  S.  Wheeler, 

Attorney  for  defendant. 

[Acknowledgment  of  service  by  attorney  for  plaintiff  and  endorse- 
ment of  filing.] 

FORM   No.  1097 — Demand  for  change  of  place  of  trial. 

(In  Younger  v.  Spreckels,  12  Cal.  App.  175;  106  Pac.  895.) 
[Title  of  court  and  cause.] 

To  the  superior  court  of  the  state  of  California,  in  and  for  the 
county  of  Santa  Cruz,  and  to  Charles  B.  Younger,  attorney  for 
plaintiff : 

I  hereby  demand  that  the  place  of  trial  of  this  case  be  changed  to 
the  proper  county,  viz.  the  city  and  county  of  San  Francisco,  state 
of  California. 

Dated  June  1,  1908.  Claus  Spreckels, 

Residing  at  the  city  and  county  of 
San  Francisco,  state  of  California. 
Charles  S.  Wheeler,  Attorney  for  defendant. 
[Acknowledgment  of  service  by   attorney  for  the  plaintiff  and 
endorsement  of  filing.] 


Ch.  CXXXIV.]  IN    STATE   COURTS— FORMS.  1815 

FORM   No.   1098 — Affidavit  of  residence. 

(In  Younger  v.  Spreckels,  12  Cal.  App.  175;  106  Pac.  895.) 

[Title  of  court  and  cause.] 

[Venue.] 

Claus  Spreckels,  being  first  duly  sworn,  deposes  and  says : 

I  am  the  defendant  named  in  the  above-entitled  action;  that  at  the 
time  of  the  commencement  of  the  above-entitled  action  I  resided  in 
the  city  and  county  of  San  Francisco,  state  of  California,  and  ever 
since  said  time  have  resided,  and  do  now  reside,  in  the  said  city  and 
county  of  San  Francisco,  state  of  California. 

I  am  not  a  resident  of,  and  never  have  resided  in,  the  county  of 
Santa  Cruz,  state  of  California.  Claus  Spreckels. 

[Jurat  of  notary.] 

[Acknowledgment  of  service  by  attorney  for  the  plaintiff  and 
endorsement  of  filing.] 

FORM    No.   1099 — Affidavit  of  merits. 

(In  Younger  v.  Spreckels,  12  Cal.  App.  175;  106  Pac.  895.) 

[Title  of  court  and  cause.] 

[Venue.] 

Claus  Spreckels,  being  first  duly  sworn,  deposes  and  says :  That 
he  is  the  defendant  named  in  the  above-entitled  action ;  that  he  has 
fully  and  fairly  stated  all  the  facts  of  the  above-entitled  action  to 
his  counsel,  Charles  S.  Wheeler,  who  is  an  attorney  at  law  admitted 
to  practise,  and  in  good  standing,  before  all  the  courts  of  this  state; 
that  he  is  advised  by  his  said  counsel,  and  verily  believes,  that  he 
has  a  good  and  sufficient  defense  to  said  action  on  the  merits. 

Claus  Spreckels. 

[Jurat  of  notary.] 

[Acknowledgment  of  service  by  attorney  for  the  plaintiff  and 
endorsement  of  filing.] 

FORM   No.  1100 — Affidavit  of  residence  and  of  merits  for  change  of  place  of 
trial. 

[Title  of  court  and  cause.] 

[Venue.] 

,  being  duly  sworn,  says:  That  he  is  the  defendant  in 
this  action;  that  he  was  at  the  commencement  of  this  action  [and 
now  is]  a  resident  of  the  county  of  ,  in  the  state  of  , 


1816  CHANGE  OP  VENUE.  [Tit.  XVII, 

ar>d  not  a  resident  of  the  county  in  which  this  action  was  com- 
menced; that  he  has  fully  and  fairly  stated  the  case  to  , 
his  counsel,  who  resides  at  ,  in  the  state  of  ,  and 
that  he  was  thereupon  and  is  advised  by  his  said  counsel,  and 
verily  believes,  that  he  has  a  good  and  substantial  defense  on  the 
merits  to  the  action,  and  that  for  the  reason  said  County  is 
the  proper  county  for  the  trial  of  said  action,  he  makes  his  demand 
herein  for  a  change  of  the  place  of  the  trial  of  said  action  to  said 
County.  [Signature.] 
[Jurat.] 

FORM   No.  1101 — Petition  for  change  of  venue.* 

(In  St.  Louis  etc.  R.  Co.  v.  McNamare,  91  Ark.  515;  122  S.  W.  102.) 

[Title  of  court  and  cause.] 

[Omitting  formal  parts,  the  defendant,  petitioner,  states:] 

That  it  verily  believes  that  it  can  not  obtain  a  fair  and  impartial 
trial  in  this,  Marion  County,  on  account  of  the  undue  prejudice 
against  the  petitioner  in  said  county.  It  further  says  the  plaintiff 
is  not  a  resident  of  Marion  County,  Arkansas,  but  is  a  resident  of  the 
state  of  Missouri ;  that  said  cause  of  action,  if  any  she  has,  and  the 
occurrence  of  which  she  complains,  did  not  take  place  in  Marion 
County,  Arkansas,  but  occurred  in  the  state  of  Missouri,  and  plaintiff 
was  not  compelled  to  institute  her  suit  in  Marion  County  in  order  to 
get  service  on  the  defendant  [etc.]. 

[Ending  with  prayer  to  grant  an  order  changing  the  venue  of  the 
case  to  some  other  county  in  the  state  of  Arkansas,  and  for  all  other 
proper  relief.] 

E.  B.  Kinsworthy, 
S.  B.  Campbell, 
T.  T.  Dickinson, 
[Verification.]  Attorneys  for  defendant. 

i  A  petition  for  change  of  venue  under  the  Arkansas  statute  is  required  to  be 
signed  by  the  party  and  verified  as  pleadings  are  required  to  be  verified,  and  srall 
be  supported  by  affidavits  of  at  least  two  credible  persons  to  the  effect  that  affiants 
believe  that  the  statements  of  the  petitioner  are  true:  Kirby's  Dig.  Ark.,  §  79J6, 
construed  in  St.  Louis  etc.  B.  Co.  v.  McNamare,  91  Ark.  515,  122  S.  W.  102,  104. 


Ch.  CXXXIV.]  STATE  TO  FEDERAL  COURTS— FORMS.  1817 

§474.     REMOVAL  OF  CAUSE  FROM  STATE  TO  FEDERAL  COURT. 

FORM   No.  1102 — Petition  for  removal  of  cause  from  state  to  federal   court 
on  the  ground  of  diversity  of  citizenship,  i 

[Title  of  action  in  state  court.] 

To  the  court  of  the  state  of  ,  in  and  for  the 

county  of  : 

The  petition  of  ,  the  defendant  in  the  above-entitled  action, 

respectfully  shows  to  the  court : 

1.  That  your  petitioner  is  a  defendant  in  the  above-entitled  action, 
and  is  actually  interested  in  the  controversy  herein. 

2.  That  said  action  has  been  commenced  against  him  in  said  court 
by  plaintiff  and  that  said  action  is  of  a  civil  nature. 

3.  That  the  matter  in  dispute  in  this  action  exceeds,  exclusive  of 
interest  and  costs,  the  sum  [or  value]  of  $2,000. 

4.  That  the  controversy  in  this  action,  and  every  issue  of  fact  or 
law  therein,  is  wholly  between  citizens  of  different  states,  and  can  be 
fully  determined  as  between  them;  that  the  plaintiff,  ,  is 
now,  and  was  at  the  time  of  the  filing  of  the  complaint  in  this  action 
a  citizen  of  and  a  resident  of  the  state  of  ,  and  the  defend- 
ant, ,  is  now,  and  was  at  the  time  of  the  commencement  of 
this  action,  a  citizen  of  and  resident  of  the  state  of 

5.  That  the  time  of  your  petitioner  as  defendant  in  this  action  to 
answer  or  plead  to  the  complaint  in  said  action  has  not  yet  expired, 
and  will  not  expire  until  the  day  of  ,  19  ,  and  your 
petitioner  has  not  yet  filed  any  answer  thereto  or  in  any  way  ap- 
peared in  said  action. 

6.  Your  petitioner  herewith  presents  a  good  and  sufficient  bond  as 
provided  by  the  statute  in  such  cases  that  he  will  on  or  before  the 
first  day  of  the  next  ensuing  session  of  the  United  States  circuit 
court  for  the  district  of  ,  enter  and  file  therein  a 
copy  and  transcript  of  the  record  of  this  action  and  for  the  payment 
of  all  costs  which  may  be  awarded  by  the  said  court,  if  the  said 
circuit  court  shall  hold  that  this  suit  was  wrongfully  or  improperly 
removed  thereto. 

Wherefore,  your  petitioner  prays:  That  this  court  proceed  no 
further  herein,  except  to  make  an  order  for  removal  as  required  by 
law,  and  to  accept  the  bonds  presented  herewith,  and  tc  direct  a 

i  Under  25  U.  S.  Rev.  Stats.  434,  435. 


1818  CHANGE  OF  VENUE.  [Tit.  XVII. 

transcript  of  the  record  herein  to  be  made  for  said  court  as  provided 
by  law  and  as  in  duty  bound ;  and  your  petitioner  will  ever  pray. 

[Signature  of  petitioner.] 
[Verification  as  for  a  pleading.] 

FORM   No.  1103 — Petition  for  removal  where  the  action  is  brought  by  a  citi- 
zen against  an  alien. 

[In  place  of  paragraph  4  in  form  No.  1102,  insert  the  following:] 
That  at  the  time  said  suit  was  begun,  and  at  the  present  time,  the 
plaintiff  is  a  citizen  and  resident  of  the  state  of  ,  and  the 

defendant  was  and  is  an  alien,  and  subject  of  [naming  the  foreign 
kingdom  or  state],  and  said  defendant  is  now  a  resident  in  the 
county  of  ,  and  state  of 

[Etc.] 

FORM   No.  1104 — Petition  for  removal  where  a  federal  question  is  involved. 
[Insert  in  place  of  paragraph  4  in  form  No.  1102,  the  following:] 
That  the  controversy  herein  arises  under  the  constitution  and  laws 
of  the  United  States  [or  treaties  made  under  their  authority]  in  the 
manner  as  appears  by  the  complaint  of  the  plaintiff  herein,  a  copy 
of  which  is  hereunto  annexed  and  made  a  part  of  this  application, 
that  is  to  say :     [Here  state  briefly  the  federal  question  involved,  and 
of  which  the  United  States  circuit  court  is  given  original  jurisdic- 
tion.] 
[Etc.] 

FORM   No.  1105 — Order  of  removal   made  by  state  court. 

[Title  of  court  and  cause.] 

This  cause  coming  on  to  be  heard  upon  the  application  of  the 
defendant  herein  for  an  order  transferring  the  same  to  the  United 
States  circuit  court  for  the  district  of  ,  and  it  appear- 

ing to  the  court  that  the  defendant  has  filed  his  petition  for  such 
removal  in  due  form  of  law,  that  the  defendant  has  filed  his  bond  as 
provided  by  law,  and  it  appearing  to  the  court  that  this  is  a  proper 
case  for  removal  to  said  circuit  court,  on  the  ground  that  the  parties 
hereto  are  citizens  of  different  states  [or  on  the  ground  that  a  federal 
question  is  involved  herein,  or  state  such  other  ground  as  exists]  : 

It  is  hereby  ordered,  that  this  cause  be  and  the  same  is  hereby 
removed  to  the  United  States  circuit  court  in  and  for  the 


Ch.  CXXXIV.]         STATE  TO  FEDERAL  COURTS— FORMS.  1819 

district  of  ,  and  the  clerk  is  hereby  directed  to  make  up  the 

record  in  this  cause  for  transmission  thereto  forthwith. 
Entered,  [etc.]. 

FORM    No.   1106 — Bond  on  removal  of  action  from  state  to  federal  court. 

[Title  of  action  in  state  court.] 

Know  all  men  by  these  presents:    That  we,  ,  principal, 

and  ,  of  ,  and  ,  of  ,  state  of  , 

sureties,  are  held  and  firmly  bound  unto  in  the  sum  of 

$  ,  lawful  money  of  the  United  States,  to  be  paid  to  the 

said  ,    his   heirs,    executors,    administrators,    successors, 

and  assigns;  for  which  payment  well  and  truly  to  be  made  we  bind 
ourselves,  our  heirs,  executors,  and  assigns,  jointly  and  severally, 
firmly  by  these  presents. 

Sealed  with  our  seals.     Dated  the  day  of  ,  19     . 

Upon  condition,  nevertheless,  that  whereas  the  said  has 

filed  a  petition  in  the  court,  in  County,  state  of 

,  for  the  removal  of  a  certain  cause  therein  pending  between 
the  said  ,  as  plaintiff,  and  the  said  ,  as  defendant, 

to  the  circuit  court  of  the  United  States  in  and  for  the  district 

of  ': 

Now,  if  the  said  shall  enter  in  the  said  circuit  court  of 

the  United  States  on  the  first  day  of  its  next  session  a  copy  of  the 

record  in  said  suit,  and  shall  well  and  truly  pay  all  costs  that  may 

be  awarded  by  said  circuit  court  of  the  United  States,  if  said  court 

shall  hold  that  said  suit  was  wrongfully  or  improperly  removed 

thereto,  then  this  obligation  to  be  void;  otherwise,  to  remain  in  full 

force  and  virtue.  rcs.  „       .     .     ,  -,  rc,     .  , 

[Signature  of  principal.]  [Seal.] 

[Signature  of  surety.]  [Seal.] 

[Signature  of  surety.]  [Seal.] 

[Justification  of  sureties.] 

[Endorsement  of  approval  and  of  filing  in  the  state  court.] 

§475.     ANNOTATIONS.— Change  of  place  of  trial. 

1.  Jurisdiction  conferred  by  application  for  change. 

2.  Guarantor. — Venue  of  action  against. 
8,  4.  Arkansas  statute  construed. 

5.  Divorce. — Change  of  venue  to  where  real  action  is  joined. 

6.  Facts  of  defense  not  required  to  be  set  forth. 

7.  Demand  and  affidavit  are  essential. 
8,  9.  Affidavit  of  merits  by  counsel. 

10.  "Residence"  of  a  domestic  trading  corporation. 


1820 


CHANGE  OF  VENUE. 


[Tit  XVII. 


11.  Foreign  corporation. — Venue  of  action  against. 

12.  Affidavit  of  officer  as  to  residence. 

13.  Application  for  removal  of  cause  to  federal  court. 
14,  15.  Citizenship,  diversity  of. 

16.  Averment  as  to  controversy  between  citizens  of  different  states. 

17.  Citizenship  distinguished  from  residence. 

18.  Mandamus   to   secure   change   of  venue. 

19.  Right  not  affected  by  special  appearance. 


1.  Jurisdiction  conferred  by  applica- 
tion for  change. — Taking  a  change  of 
venue  by  a  defendant  before  the  court 
in  which  the  case  is  pending  operates 
as  an  appearance  to  the  merits  and  con- 
fers jurisdiction  over  the  person:  Feed- 
ler  v.  Schroeder,  59  Mo.  364;  Speer  v. 
Burlingame,   61  Mo.  App.   75. 

2.  Guarantor. — Venue  of  action  against. 
— A  motion  for  change  of  Venue  was 
held  to  have  been  properly  denied  in 
an  action  in  which  the  plaintiff  joined 
as  parties  defendant  an  original  obligor 
and  his  guarantor  and  laid  the  venue  in 
the  county  in  which  the  guarantor  re- 
sided, where  the  motion  was  made  by 
the  obligor  upon  an  affidavit  stating 
that  the  claim  of  guaranty  was  false, 
and  that  the  guarantor  was  made  his 
co-defendant  in  order  that  the  plaintiff 
might  bring  the  action  in  the  county  in 
which  the  guarantor  resided;  and  where 
a  counter-affidavit  was  filed  by  the 
plaintiff  to  the  effect  that  the  guarantor 
was  made  defendant  not  for  the  purpose 
of  controlling  the  venue  in  said  action, 
but  because,  according  to  plaintiff's 
theory,  plaintiff  was  entitled  to  judg- 
ment against  either  or  both  of  said  de- 
fendants, and  further  alleging  that  the 
guarantor  was  a  bona  fide  resident  of 
the  county  in  which  the  summons  was 
served:  Senn  v.  Connelly  (S.  Dak.),  120 
N.  W.  1097,  1098. 

3.  The  Arkansas  statute  (Kirby's 
Dig.,  §§  7996,  7998)  construed. — The  stat- 
ute plainly  means  that  if  the  plaintiff 
commences  an  action  in  a  county  other 
than  that  of  his  residence,  or  other  than 
that  of  the  county  in  which  the  occur- 
rence of  which  he  complains  took  place, 
unless  he  is  compelled  to  do  so  in  order 
to  get  service  on  the  defendant,  the  lat- 
ter shall  have  the  right  to  a  change  of 
venue  upon  presentation  of  his  petition 
in  proper  form,  duly  verified,  containing 
allegations  of  the  statutory  grounds  of 
prejudice  or  undue  influence  and  sup- 
ported by  the  affidavits  of  two  credible 
witnesses:  St.  Louis  etc.  R.  Co.  v.  Fur- 
low,  81  Ark.  496,  499,  99  S.  W.  689.    The 


language  in  section  7998  of  the  statute 
"upon  presenting  the  petition,"  etc., 
plainly  contemplates  the  petition  duly 
verified  and  the  supporting  affidavits. 
If  the  legislature  had  intended  that  the 
supporting  affidavits  should  accompany 
the  petition  as  a  prerequisite  to  the 
granting  of  a  change  of  venue,  it  would 
have  used  the  language  "upon  presen- 
tation of  his  petition  duly  verified,  to- 
gether with  the  supporting  affidavits," 
but  the  assertion  of  the  one  excludes 
the  use  of  the  other.  The  proviso  con- 
tained in  the  latter  part  of  section  7998 
is  a  limitation  upon  the  preceding  part 
of  the  section.  While  the  conditions 
contained  in  the  proviso  exist,  they  de- 
feat the  operation  of  the  first  part  of 
the  section;  in  other  words,  the  proviso 
conditionally  limits  the  operation  of  the 
statute  relative  to  change  of  venue.  It 
provides  that,  when  the  conditions  ex- 
ist, the  change  of  venue  shall  be  grant- 
ed as  a  matter  of  right  upon  presenta- 
tion of  the  petition  duly  verified:  St. 
Louis  etc.  R.  Co.  v.  McNamare,  91  Ark. 
515,  122  S.  W.  102,  104. 

4.  Where  an  action  is  not  commenced 
in  the  county  of  the  plaintiff's  residence, 
nor  in  the  county  where  the  occurrence 
complained  of  took  place,  and  it  is  not 
necessary  to  bring  the  suit  in  the  county 
in  which  the  action  was  commenced  in 
order  to  get  service,  the  defendant,  upon 
presentation  of  his  petition  duly  veri- 
fied, is  entitled  as  a  matter  of  right  to  a 
change  of  venue:  St.  Louis  etc.  R.  Co.  v. 
McNamare,  91  Ark.  515,  122  S.  W.  102, 
103,  quoting  and  construing  Kirby's 
Dig.,  §§  7996,  799S,  prescribing  procedure 
to  obtain  an  order  for  change  of  venue. 

5.  Divorce. — Change  to  where  real  ac- 
tion is  joined. — Where  in  an  action  for 
divorce  a  real  action  is  joined  in  the  com- 
plaint, the  defendant  will  be  entitled  to 
have  the  place  of  trial  removed  to  the 
county  of  his  residence.  Such  a  case 
falls  within  the  provisions  of  section 
395  of  the  Code  of  Civil  Procedure,  and 
the  action  must  be  brought  in  a  county 
wherein    the    defendant    resides;    and    if' 


Ch.  CXXXIV.] 


ANNOTATIONS. 


1821 


not,  a  suit  so  brought  must  be  removed 
thereto:  Le  Breton  v.  Superior  Court, 
66  Cal.  30,  4  Pac.  777;  Ah  Fong  v. 
Sternes,  79  Cal.  33,  21  Pac.  381;  Smith  v. 
Smith,  88  Cal.  572,  26  Pac.  356;  Warner 
r.  Warner,  100  Cal.  11,  16,  34  Pac.  523. 

6.  Facts  of  defense  not  required  to  be 
set  forth. — An  affidavit  of  merits  need 
not  state  the  facts  constituting  a  meri- 
torious defense,  but  such  affidavit 
should  state  in  substance  that  affiant 
has  fully  and  fairly  stated  the  facts  of 
the  case  to  his  counsel,  and  that  such 
counsel  had  advised  him  that  he  has  a 
good  legal  and  meritorious  defense.  But 
where  the  court  below  seems  to  have 
been  satisfied  with  an  affidavit  merely 
stating,  in  this  respect,  "that  the  de- 
fendant has  a  good  legal  and  meritorious 
defense,"  there  is  no  such  abuse  of  dis- 
cretion as  would  justify  the  appellate 
court  in  reversing  an  order  made  there- 
on, especially  where  such  reversal  would 
operate  as  a  final  bar  to  any  defense  on 
the  part  of  the  defendant:  Howe  v. 
Coldren,  4  Nev.  171,  177. 

7.  Demand  and  affidavit  are  essential. 
— Where  a  party  fails  at  the  time  of  in- 
terposing his  demurrer  to  file  an  af- 
n  iavit  of  merits  and  a  demand  in  writ- 
ing for  a  change  of  the  place  of  trial  of 
the  action,  he  thereby  waives  his  right 
to  such  change,  even  if  the  facts  in 
reality  entitle  him  to  a  change:  Bell  v. 
Camm,  10  Cal.  App.  388,  102  Pac.  225, 
226,  citing  Cook  v.  Pendergast,  61  Cal. 
78. 

8.  Affidavit  of  merits  by  counsel. — The 
propriety  of  counsel  for  a  party  making 
an  affidavit  as  to  the  merits  or  legality 
of  the  defense  is  often  called  in  ques- 
tion. Where  counsel  makes  such  an  af- 
fidavit, the  better  practice  would  re- 
quire that  he,  as  affiant,  in  setting  out 
that  the  defendant  has  a  good  legal  and 
meritorious  defense,  allege  or  show  in 
some  way  that  he,  as  counsel,  knows  or 
is  familiar  with  the  facts  in  the  case: 
Howe  v.   Coldren,  4  Nev.   171,   177. 

9.  An  affidavit  of  merits  in  which  the 
affiant,  among  other  things,  sets  forth, 
"And  after  such  statement  I  am  advised, 
and  verily  believe,  that  I  have  a  good 
defense  on  the  merits  to  this  action," 
etc.;  held  defective,  upon  the  ground 
that  the  affiant  should  have  stated  that 
he  was  advised  by  his  counsel  that  he 
had  a  good  defense:  Grangers'  Union  v. 
Ash,  12  Cal.  App.  143,  106  Pac.  8S9,  890. 
\  Author's  note:    Of  this  decision  it  might 


well  be  said,  "More  subtile  web  Arachne 
can  not  spin."  Where  the  affiant  states, 
as  in  this  case,  that  he  had  "fully  and 
fairly  stated  the  case  to  his  counsel," 
naming  him,  and  "after  such  statement 
I  am  advised,"  etc.,  it  would  hardly 
seem  to  require  the  services  of  a  sleuth 
to  discover  who  gave  the  advice.] 

10.  "Residence"  of  domestic  trading 
corporation. — A  domestic  trading  cor- 
poration resides,  within  the  meaning  of 
section  3951  of  the  California  Code  of 
Civil  Procedure,  in  the  county  where  its 
principal  place  of  business  is,  and  such 
place  is  where  designated  by  its  articles 
of  incorporation:  Jenkins  v.  California 
Stage  Co.,  22  Cal.  537;  Cohn  v.  Central 
Pacific  R.  Co.,  71  Cal.  488,  12  Pac.  498; 
McSherry  v.  Penn  Co.,  97  Cal.  637,  32 
Pac.  711;  Buck  v.  Eureka,  97  Cal.  135, 
140,  31  Pac.  845,  846;  Trezvant  v.  Strong, 
102  Cal.  47,  36  Pac.  395. 

11.  Foreign  corporation. — Venue  of  ac- 
tions against. — The  rule  is  different  with 
respect  to  the  right  of  foreign  corpora- 
tions to  change  the  place  of  trial.  In 
the  absence  of  any  statutory  provision 
fixing  the  place  of  trial,  in  actions 
against  foreign  corporations,  such  ac- 
tion may  be  brought  and  maintained  in 
any  county  of  the  state.  A  foreign  cor- 
poration exists  in  and  by  virtue  of  the 
law  of  the  foreign  country,  and  no  stat- 
ute of  another  state  can  give  a  local 
residence  to  such  corporation  where 
alone  it  can  be  sued.  Its  liability  to  be 
sued  in  the  courts  of  such  latter  state  no 
more  confers  a  comity  residence  upon  it 
than  does  the  comity  which  permits  it 
to  apply  to  its  courts  for  the  enforce- 
ment of  a  contract  for  the  redress  of  a 
wrong:  Thomas  v.  Placerville  G.  Q.  M. 
Co.,  65  Cal.  600,  4  Pac.  641,  643;  Anglo- 
Californian  Bank  v.  Field,  146  Cal.  644, 
650,  80  Pac.  1080;  Waechter  v.  Atchison 
etc.  R.  Co.,  10  Cal.  App.  70,  101  Pac.  41. 
42;  Boyer  v.  Northern  Pacific  R.  Co.,  8 
Idaho  74,  66  Pac.  826,  70  L.  R.  A.  691; 
Olson  v.  Osborne,  30  Minn.  444,  15  N. 
W.   876. 

As  to  right  of  foreign  corporations,  in 
respect  to  change  of  place  of  trial  on 
the  ground  of  residence,  see  Waechter 
v.  Atchison  etc.  R.  Co.,  10  Cal.  App.  70, 
101  Pac.   41,   42. 

12.  Affidavit  of  officer  as  to  residence. 
— An  affidavit  of  an  officer  of  a  foreign 
corporation,  without  sanction  of  the 
statute  for  such  a  proceeding,  can  not 
be  held  to  admit  such   a  corporation   to 


1822 


CHANGE  OF  VENUE. 


[Tit.  XVII. 


the  constitutional  rights  and  privileges 
of  a  domestic  corporation  with  respect 
to  its  principal  place  of  business  for  the 
purpose  of  establishing  its  residence  in 
another  state:  Waechter  v.  Atchison 
etc.  R.  Co.,  10  Cal.  App.  70,  101  Pac.  41, 
43. 

13.  Application  for  removal  of  cause 
to  federal  court. — It  has  been  held, 
where  a  petition  for  removal  of  a  cause 
from  a  state  to  the  federal  court  is 
made  and  based  upon  the  theory  that 
the  cause  of  action  or  controversy  in- 
volved is  separable  with  reference  to 
the  parties  joined  as  defendants,  and 
that,  although  one  of  the  defendants 
was  a  citizen  of  Colorado,  the  remain- 
ing defendant  was  a  Wyoming  corpora- 
tion, such  application  is  properly  de- 
nied where  the  matters  alleged  in  the 
complaint  constitute  concurrent  acts  of 
negligence  against  the  defendants,  and 
where  on  the  face  of  the  complaint  it 
can  not  be  said  that  the  controversy  is 
separable:  Stratton  Cripple  Creek  etc. 
Co.  vv  Ellison,  42  Colo.  498,  94  Pac.  303, 
305,  (negligence  resulting  in  personal  in- 
juries suffered  in  a  mine). 

14.  Citizenship,  diversity  of. — To  ren- 
der an  action  removable  to  the  federal 
court  on  the  ground  of  alleged  diversity 
of  citizenship,  is  not  enough  to  aver 
generally  that  plaintiff  [or  defendant]  is 
not  a  citizen  of  a  particular  state,  or 
not  of  the  state  in  which  the  suit  is 
pending:  Cameron  v.  Hodges,  127  U.  S. 
322,  8  Sup.  Ct.  1154,  32  L.  ed.  132. 

15.  Distinct  statements  of  the  citizen- 
ship of  the  parties,  and  of  the  particu- 
lar state  in  which  it  is  claimed  such  citi- 
zenship exists  are  required:  CameroB 
v.  Hodges,  127  U.  S.  322,  8  Sup.  Ct. 
1154,  32  L.  ed.  132;  O'Connor  v.  Chicago 
etc.  Co.   (Iowa),  122  N.  W.  947,  949. 

16.  Averment  as  to  controversy  be- 
tween citizens  of  different  states. — To 
aver  that  the  controversy  is  between 
citizens  of  different  stales  is  but  a  con- 


clusion, where  it  precedes  specific  alle- 
gations of  facts  by  way  of  explanation, 
or  follows  them  as  an  inference  to  be 
drawn  therefrom:  O'Connor  v.  Chicago 
etc.  Co.  (lowa),  122  N.  W.  947,  949,  cit- 
ing Neel  v.  Penn  Co.,  157  U.  S.  153,  15 
Sup.  Ct.  589,  39  L.  ed.  654;  Continental 
Life  Ins.  Co.  v.  Rhoads,  119  U.  S.  237,  7 
Sup.  Ct.  193,  30  L.  ed.  380;  Grace  v. 
American  Central  I.  Co.,  109  U.  S.  278, 
3  Sup.  Ct.  207,  27  L.  ed.  932. 

17.  Citizenship  distinguished  from  res- 
idence.— Citizenship  can  not  be  inferred 
from  an  averment  as  to  residence,  for 
the  reason  that  a  person  may  be  a  citi- 
zen of  a  state  although  a  resident  of  an- 
other: Continental  Life  I.  Co.  v. 
Rhoads,  119  U.  S.  237,  7  Sup.  Ct.  193,  3C 
L.  ed.  380;  O'Connor  v.  Chicago  etc.  Co. 
(Iowa),  122  N.  W.  947.  950. 

18.  Mandamus  to  secure  change  of 
venue. — Mandamus  lies  to  compel  a 
judge  to  grant  a  change  of  venue  where 
the  moving  party  has  a  clear  legal  right 
thereto:  State  v.  Dick,  103  Wis.  407, 
79  N.  W.  421,  construing  §  3069  Rev. 
Stats.  1898,  under  which  an  order  deny- 
ing change  of  venue  is  unappealable. 
See  Gamble  v.  First  Judicial  Dist. 
Court,  27  Nev.  233,  74  Pac.  530.  Com- 
pare People  v.  Church,  103  111.  App.  132; 
Galbraith  v.  Williams,  21  Ky.  Law  Rep. 
79,  106  Ky.  431,  50  S.  W.  686.  So,  also, 
mandamus  will  lie  to  compel  the  court 
to  hear  and  determine  a  motion  for 
change  of  venue  to  the  county  of  de- 
fendant's residence:  Hennessy  v.  Nicol, 
105   Cal.   138,    142,   38   Pac.   649. 

19.  Right  not  affected  by  special  ap- 
pearance.— A  special  apearance  by  mo- 
tion to  strike  out  portions  of  the  com- 
plaint made  before  or  at  the  time  of 
filing  the  demurrer  is  not  such  an  ap- 
pearance and  submission  to  the  court's 
jurisdiction  as  constitutes  a  waiver  of 
the  right  to  move  for  a  change  of  venue: 
Wood  v.  Herrman  Min.  Co.,  139  Cal. 
713,   717,   73   Pac.   538, 


Ch.  CXXXV.J    APPEARANCE  AND  DEFAULT.— FORMS.  1823 

CHAPTER  CXXXV. 

Appearance  and  Default,  and  Substitution  of  Attorneys. 

Page 

5  476.  Appearances  1823 

Form  No.  1107.  Notice  of  special  appearance 1823 

Form  No.  1108.  Notice  of  general  appearance 1823 

Form  No.  1109.  Acknowledgment  of  service 1823 

5  477.  Defaults   1824 

Form  No.  1110.  Application  for  entry  of  default 1824 

Form  No.  1111.  Clerk's  entry  of  default  of  defendant  for  fail- 
ure to  appear  1824 

Form  No.  1112.  Stipulation  to  set  aside  judgment  by  default 

and  to  reopen  cause 1824 

Form  No.  1113.  Order    on    stipulation,    setting    aside    default 

judgment  1825 

§  478.  Substitution  of  attorneys   1825 

Form  No.  1114.  Notice  of  substitution  of  attorneys 1825 

Form  No.  1115.  Consent  to  substitution  of  attorneys 1825 

Form  No.  1116.  Acknowledgment  of  notice  and  service  of  sub- 
stitution     1825 

§  479.  Annotations    1826 

§476.     APPEARANCES. 

FORM   No.  1107 — Notice  of  special  appearance. 

[Title  of  court  and  cause.] 

To  A.  B.,  attorney  for  plaintiff: 

Please  take  notice,  that  the  undersigned  appears  in  this  action  for 
the  defendant,  M.  N.,  for  the  special  purpose  of  [stating  the  special 
purpose]  and  for  no  other  purpose. 

[Date.]  C.  D.,  Attorney  for  defendant,  specially  appearing. 

FORM   No.  1108 — Notice  of  general  appearance. 

[Title  of  court  and  cause.] 

To  A.  B.,  attorney  for  plaintiff  [or  other  party,  naming  him]  : 

Please  take  notice,  that  the  undersigned  appears  for  the  defend- 
ant, M.  N.,  in  this  action. 

[Date.]  C.  D.,  Attorney  for  defendant  [or  other  jarty.] 

FORM   No.  1109 — Acknowledgment  of  service. 

[Title  of  court  and  cause.] 

The  undersigned,  attorney  for  plaintiff,  hereby  acknowledges 
service  of  [here  naming  the  instrument  served]. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 


1824  APPEARANCE,  DEFAULT,  ETC.  [Tit.  XVII. 

§477.     DEFAULTS. 

FORM    No.  1110 — Application   for  entry  of  default. 

(From  the  record  in  Nixon  v.  Goodwin,  3  Cal.  App.  358 ;  85  Pac.  169.) 

[Title  of  court  and  cause.] 

In  this  action  the  defendant  [M.  C.  Co.],  having  been  regularly 
served  with  process,  and  having  failed  to  appear  and  demur  or 
answer  to  the  plaintiff's  complaint  herein,  and  the  legal  time  for 
demurring  or  answering  having  expired,  application  is  hereby  made 
by  the  plaintiff  to  the  clerk  of  said  court  for  the  entry  of  a  default 
against  said  defendant. 

Dated  June  4,  1901.  Tabor  &  Tabor, 

[Endorsement  of  filing.]  Attorneys  for  plaintiff. 

FORM   No.  1111 — Clerk's  entry  of  default  of  defendant  for  failure  to  appear. 
(In  Angus  v.  Craven,  132  Cal.  691;  64  Pac.  1091.) 

[Title  of  court  and  cause.] 

In  this  action  the  defendant,  Elizabeth  Haskins,  having  been  legally 
served  with  process,  and  having  failed  to  appear  and  answer  [or 
demur]  to  the  complaint  [in  intervention]  on  file  herein,  and  the 
time  allowed  by  law  for  answering  [or  demurring]  having  expired, 
the  default  of  said  defendant  in  the  premises  is  hereby  duly  entered 
according  to  law. 

Attest  my  hand  and  seal  of  said  court,  this  11th  day  of  September, 
1897.  C.  F.  Curry,  Clerk. 

By  E.  P.  Peterson,  Deputy  Clerk. 

FORM   No.  1112 — Stipulation  to  set  aside  judgment  by  default  and  to  reopen 
cause. 

[Title  of  court  and  cause.] 

It  is  hereby  stipulated  and  agreed  by  and  between  the  parties 
hereto,  that  the  judgment  entered  herein  on  the  day  of  , 

19  ,  be  set  aside,  and  that  the  defendant  be  given  leave  to  file  his 
demurrer  herein  and  pursue  such  other  defenses  as  he  may  be  ad- 
vised. 

It  is  further  stipulated,  that  such  order  or  orders  may  be  made 
herein  as  may  be  necessary  for  the  purposes  of  this  stipulation. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

C.  D.,  Attorney  for  defendant. 


Ch.  CXXXV.]  SUBSTITUTION   OF  ATTORNEYS.— FORMS.  1825 

FORM    No.   1113 — Order  on  stipulation,  setting  aside  default  judgment. 

[Title  of  court  and  cause.] 

Good  cause  appearing  therefor,  and  pursuant  to  a  stipulation 
between  the  parties  hereto,  made  and  entered  into  on  ,  19     , 

and  filed  herein : 

It  is  hereby  ordered,  that  the  judgment  entered  herein  on  the 
day  of  ,  19     ,  be  and  the  same  is  hereby  vacated  and  set 

aside,  and  defendant  is  hereby  given  leave  to  file  his  demurrer  here- 
in, and  to  pursue  such  other  defenses  herein  as  he  may  be  advised. 

[Date.]  S.  T.,  Judge. 

§478.     SUBSTITUTION  OF  ATTORNEYS. 

FORM   No.  1114 — Notice  of  substitution   of  attorneys. 

(  In  McFarland  v.  Matthai,  7  Cal.  App.  599;  95  Pac.  179.) 
[Title  of  court  and  cause.] 

To  ,  defendants  herein,  and  to  ,  their  attorneys: 

Please  take  notice,  that  after  this  day  I  have  substituted  Bell, 
York  &  Bell,  as  my  attorneys,  in  the  place  and  stead  of  Percy  S. 
King,  and  that  the  said  Percy  S.  King  has  in  writing  consented  to 
the  said  substitution. 

Dated  April  12,  1905.  Abel  McFarland,  Plaintiff. 

Bell,  York  &  Bell, 

Attorneys  for  plaintiff. 

FORM   No.  1115 — Consent  to  substitution  of  attorneys. 

(In  McFarland  v.  Matthai,  7  Cal.  App.  599;  95  Pac.  179.) 
[Title  of  court  and  cause.] 

Consent  and  notice  is  hereby  given  of  the  substitution  of  Bell, 
York  &  Bell,  as  attorneys  for  the  plaintiff,  for  and  in  the  place  and 
stead  of  the  undersigned. 

Dated  Jan.  20,  1904.  Percy  S.  King, 

Attorney  for  the  plaintiff. 

FORM   No.  1116 — Acknowledgment  of  notice  and  service  of  substitution. 

[Title  of  court  and  cause.] 

Due  notice  and  service  of  a  copy  of  the  above  notice  of  substitu- 
tion of  attorneys  for  the  plaintiff  [or  defendant]  in  the  above- 
entitled  action  is  hereby  admitted  this  day  of  ,  19     . 

A.  B.,  Attorney  for  defendant  [or  plaintiff]. 


1826 


APPEARANCE,  DEFAULT,  ETC. 


[Tit.  XVII. 


§479.     ANNOTATIONS. — Appearance  and  default,  and  substitution  of  attor- 
neys. 

1.  Appearance. — Effect  of  request  for  time  to  answer. 
2,  3.  Asking  permission  to  plead  to  merits. 
4,  5.  Appearance  to  merits. 

6.  Setting  cause  for  trial. 
7,  8.  Effect  of  general  appearance. 

9.  Statutory  provisions  as  to  general  appearance. 

10.  Entry  of  general  appearance  on  appeal. 

11.  Default.— Effect  of  entry. 

12.  Issues  of  law  preclude  default. 

13.  Substitution. — California  procedure. 

14.  Notice  of  substitution  by  citation. — Washington  practice. 

15.  Wisconsin  rule. 

16.  Substitution   pending  appeal. 

17.  Authority  to  attorney  coupled  with  interest. 

18.  Service  of  notice  of  appeal  where  no  substitution  is   made. 


1.  APPEARANCE.— Effect    of     request 

for  time  to  answer.— A  request  for  time 
in  which  to  answer  the  merits  consti- 
tutes a  general  appearance,  the  effect 
and  scope  of  which  may  not  be  limited 
by  any  statement  on  the  part  of  coun- 
sel that  he  desires  the  record  to  show 
that  his  appearance  is  special:  State  ex 
rel.  Mackey  v.  District  Court,  40  Mont. 
359,  106  Pac.  1098,  1100. 

2.  Asking  permission  to  plead  to  mer- 
its.— Where  a  party  appears,  either  be- 
fore or  after  judgment,  and  asks  per- 
mission to  plead  to  the  merits  of  the 
cause,  he  thereby  waives  all  irregulari- 
ties in  the  service  of  process:  Mayer  v. 
Mayer,  27  Ore.  133,  39  Pac.  1002,  cited 
and  approved  in  State  ex  rel.  Mackey  v. 
District  Court,  40  Mont.  359,  106  Pac. 
1098,  1101.  It  is  a  settled  rule  that  if 
a  party  desires  to  take  advantage  of 
want  of  service  of  process  sufficient  to 
give  the  court  jurisdiction  of  his  per- 
son, he  must  specially  appear  for  that 
purpose  only:  Gilbert- Arnold  D.  Co.  v. 
O'Hare,   93  Wis.   194,   67  N.   W.  38. 

3.  A  defendant  waives  his  right  to  ob- 
ject to  a  judgment  for  want  of  proper 
service  of  summons  by  appearing  and 
asking  leave  to  answer  to  the  merits: 
Mayer  v.  Mayer,  27  Ore.  133,  39  Pac. 
1002;  Anderson  v.  McClellan  (Ore.),  102 
Pac.   1015,   1016,    (ejectment). 

4.  Appearance  to  the  merits. — An  ap- 
pearance by  the  defendant  to  the  mer- 
its of  the  action,  in  a  case  where  the 
court  is  possessed  of  jurisdiction  over 
the  subject-matter,  confers  complete 
jurisdiction  over  the  person:  Columbia 
Brewery  Co.  v.  Forgey,  140  Mo.  App. 
605,    120    S.    W.    625,    628;    Wicecarver   v. 


Mercantile  etc.  Ins.  Co.,  137  Mo.  App. 
247,  117  S.  W.  698;  Thomasson  v.  Mer- 
cantile etc.  Ins.  Co.,  114  Mo.  App.  109, 
89  S.  W.  564,  1135,  116  S.  W.  1092;  Mc- 
Clure  v.  Paducah  Iron  Co.,  90  Mo.  App. 
567. 

5.  An  answer  to  the  merits,  as  a  gen- 
eral rule,  operates  as  a  voluntary  ap- 
pearance: Wicecarver  v.  Mercantile 
etc.  I.  Co.,  137  Mo.  App.  247,  117  S.  W. 
698,  701.  Appearance  by  demurrer  is  a 
general  appearance,  even  though  it  is 
stated  therein  that  the  appearance  is 
made  simply  and  only  for  the  purposes 
of  the  demurrer:  McDonald  v.  Agnew, 
122  Cal.  448,  450,  55  Pac.  125;  and  it  is 
held,  that  where  an  appearance  is  made 
to  challenge  a  judgment  or  order  not 
merely  on  jurisdictional  grounds,  but 
also  on  non-jurisdictional  grounds,  the 
appearance  is  general,  no  matter  what 
the  parties  may  call  it  in  their  motion: 
Burdette  v.    Corgan,    26   Kan.   102. 

6.  Setting  cause  for  trial. — An  appear- 
ance for  the  purpose  of  setting  a  cause 
for  trial  operates  to  waive  the  matter  of 
jurisdiction  over  the  person  of  the  de- 
fendant and  confers  jurisdiction  upon 
the  court  to  proceed:  Orear  v.  Clough, 
52  Mo.  55. 

7.  Effect  of  general  appearance. — A 
general  appearance  is  equivalent  to  per- 
sonal service  of  summons:  State  ex  r.-l. 
Mackey  v.  District  Court,  40  Mont.  359, 
106  Pac.  1098,  1100,  citing  Anderson  v. 
Burchett,  48  Kan.  781,  30  Pac.  174. 

8.  The  service  of  the  summons  and  of 
a  copy  of  the  complaint,  or  the  volun- 
tary appearance  of  the  defendant,  in- 
vests the  court  with  jurisdiction  of  the 
parties  and  control  of  all  the  subsequent 


Ch.  CXXXV.] 


ANNOTATIONS. 


1827 


proceedings:  Bell  v.  Camm,  10  Cal. 
App.  388,  102  Pac.  225,  226.  construing 
Cal.  Code  Civ.  Proc,  §  416. 

9.  Statutory  provisions  as  to  general 
appearance. — Where  the  statute  de- 
fines what  shall  constitute  an  appear- 
ance,— as,  for  instance,  under  section 
1014  of  the  California  Code  of  Civil 
Procedure,  "A  defendant  appears  in  an 
action  when  he  answers,  demurs  or 
gives  written  notice  of  his  appearance, 
or  when  an  attorney  gives  notice  for 
him,  and  he  can  appear  in  no  other 
way";  held,  that  the  manner  and  effect 
of  appearances  are  determined  by  the 
statute  alone:  Vrooman  v.  Li  Po  Tai, 
113  Cal.  302,  45  Pac.  470;  Powers  v. 
Braly,  75  Cal.  237,  17  Pac.  197;  Benedict 
v.  Arnoux,  38  N.  Y.  Supp.  882;  Bell  v. 
Good,  22  Civ.  Proc.  Rep.  317,  356,  19 
N.  Y.  Supp.  693,  citing  N.  Y.  Code  Civ. 
Proc,  §  421,  Cal.  Code  Civ.  Proc,  §  1014. 
The  principle  involved  in  the  California 
and  New  York  cases  is  called  in  ques- 
tion in  some  jurisdictions,  inasmuch  as 
it  is  evidently  not  the  intention  of  the 
legislature  to  make  the  means  define! 
in  the  statute  the  only  means  by  which 
a.  defendant  may  appear.  The  purpose 
of  the  statute  is  simply  to  assure  the 
defendant  of  notice  of  all  subsequent 
proceedings  in  the  cause  after  he  had 
filed  and  served  an  answer,  demurrer,  or 
notice  of  appearance:  State  ex  rel.  Cur- 
tis v.  McCullough,  3  Nev.  202;  State  ex 
rel.  Mackey  v.  District  Court,  40  Mont. 
359,  106  Pac.  1098,   1101. 

10.  Entry  of  a  general  appearance  on 
appeal,  without  reserving  or  alluding  to 
a  special  appearance,  waives  the  spe- 
cial appearance  and  gives  the  appellate 
court  full  and  complete  jurisdiction  over 
the  subject-matter  of  the  action  and  the 
parties  to  the  appeal:  Columbia  etc.  R. 
Co.  v.  Moss,  53  Wash.  512,  102  Pac.  439. 

11.  DEFAULT. — Entry  of  default  pre- 
supposes that  the  demurrer  and  motion 
had  been  acted  upon  and  overruled  and 
no  answer  made:  Smith  v.  Clyne,  16 
Idaho  466,  101  Pac.  819. 

12.  Issues  of  law  preclude  default. — 
Where  issues  of  law  are  presented, 
either  upon  demurrer  or  motion,  the 
court  is  required  to  decide  the  same, 
and  the  defendant  is  not  in  default  un- 
til such  issues  of  law  are  disposed  of: 
Winchester  v.  Black,  134  Cal.  125,  66 
Pac.  197;  Oliphant  v.  Whitney,  34  Cal. 
25.  See,  also,  Smith  v.  Clyne,  16  Idaho 
466,  101  Pac.   819,   820. 


13.  SUBSTITUTION.— California  pro- 
cedure.— A  substitution  or  change  of  at- 
torneys may  be  made  under  the  Cali- 
fornia Code  of  Civil  Procedure  (§  285), 
in  one  of  two  ways:  (1)  Upon  consent 
of  both  attorney  and  client  filed  with 
the  clerk  or  entered  upon  the  minutes; 
or  (2)  upon  the  order  of  the  court  upon 
the  application  of  either  client  or  attor- 
ney, after  notice  from  one  to  the  other. 
Where  the  mode  last  designated  is  em- 
ployed, a  petition  is  insufficient  which 
does  not  allege  that  notice  was  given: 
Rundberg  v.  Belcher,  118  Cal.  589,  590, 
50  Pac.  670,  (denying  application  for 
writ  of  mandate  to  compel  substitu- 
tion). 

14.  Notice  of  substitution  by  citation. 
— Washington  practice. — Under  a  Wash- 
ington statute  (§  4769  Bal.  Code),  to  the 
effect  that  a  substitution  may  be  or- 
dered at  any  time  before  judgment  or 
final  determination,  provided  the 
charges  of  the  attorney  have  been  paid, 
it  is  immaterial  as  to  what  method  of 
giving  notice  of  the  motion  is  em- 
ployed so  long  as  reasonable  notice  is 
given.  While  the  usual  method  is  by 
notice  of  motion,  there  can  be  no  valid 
objection  to  notice  by  citation:  Schul- 
theis  v.  Nash,  27  Wash.  250,  67  Pac  707. 
Under  the  California  statute,  the  indebt- 
edness of  a  client  to  his  attorney  for 
services  rendered  in  the  action  can  not 
prevent  substitution:  Gage  v.  Atwater, 
136  Cal.    170,    172,   68  Pac.   581. 

15.  Wisconsin  rule. — Under  the  Wis- 
consin practice,  substitution  of  an  at- 
torney shall  be  granted  only  where  con- 
sent in  writing,  signed  by  the  party  and 
his  attorney,  is  given;  or  for  cause 
shown  on  due  notice  to  the  court  or 
judge,  upon  such  terms  as  shall  be  just: 
Circuit  Court  Rule  V,  §  2,  construed  in 
McMahon  v.  Snyder,  117  Wis.  463,  466, 
94  N.  W.  351. 

16.  Substitution  pending  appeal. — Sub- 
stitution must  be  made  in  the  trial 
court  where,  after  default  entered  and 
appeal  taken,  motion  is  made  to  that 
end,  and,  when  so  made,  the  substituted 
attorney  will  be  ordered  substituted  as 
the  attorney  of  record  on  the  appeal: 
Woodbury  v.  Nevada  S.  R.  Co.,  120  Cal. 
367,  368,  52  Pac.  650.  See  Chamberlain 
v.  Hedger,  10  S.  Dak.  290,  73  N.  W.  75. 
And  substitution  of  an  attorney  after 
appeal  should  be  followed  by  like  sub- 
stitution   in    the    trial    court:    Reay    v. 


1828 


NOTICES,  MOTIONS,  AND  ORDERS. 


[Tit.  XVII. 


Heazelton,    128    Cal.    335,    338,    60    Pac. 
977. 

17.  Authority  to  attorney  coupled  with 
interest. — Form  of  authority  to  attorney 
to  prosecute  to  settlement  and  judgment 
an  action  for  damages,  with  authority 
to  compromise,  etc.:  Gulf  Colorado  etc. 
R.  Co.  v.  Miller,  21  Tex.  Civ.  App.  609, 
610,  53  S.  W.  709,  (authority  held  not 
revocable  at  the  instance  of  the  client 
alone,  in  the  absence  of  fraud,  because 
of  interest  coupled  with  the  contract). 


18.  Service  of  notice  of  appeal  where 
no  substitution  is  made. — Service  of 
notice  of  appeal  on  attorney  who  signed 
original  answer  of  defendant,  although 
another  signed  the  amended  answer, 
where  there  was  never  any  substitution 
of  attorneys,  is  good,  although  the  de- 
fendant represented  by  such  attorney 
was  dead  at  the  time  of  service:  Lacoste 
v.  Eastland,  117  Cal.  673,  680,  49  Pac. 
1046. 


CHAPTER  CXXXVI. 

Notices,  Motions,  and  Orders. 

Page 

§  480.  Notice  of  pendency  of  action 1829 

Form  No.  1117.  Common  form 1829 

§  481.  Notices,  generally 1829 

Form  No.  1118.  Notice  of  decision  1829 

Form  No.  1119.  Notice  of  decision  in  favor  of  defendants  and 

cross-complainant  1830 

Form  No.  1120.  Notice    of   time    of    trial.      (With    waiver    by 

plaintiff  of  trial  by  jury.) 1830 

Form  No.  1121.  Notice  to  produce  documents  for  use  on  the 

trial 1830 

Form  No.  1122.  Notice  of  motion  to  dismiss  action 1831 

Form  No.  1123.  Notice  of  overruling  demurrer  and   granting 

time  to  answer 1831 

§  482.  Orders 1832 

Form  No.  1124.  Order  extending  time  to  plead 1832 

Form  No.  1125.  Order  assigning  cause   1832 

Form  No.  1126.  Order  denying  or  overruling  motion  in  general  1832 
Form  No.  1127.  Order  on  motion  to  strike  pleading  from  the 

files 1832 

Form  No.  1128.  Order  granting  time  to  answer  upon  overruling 

demurrer  1833 

Form  No.  1129.  Order  granting  time  to  amend  after  sustaining 

demurrer  1833 

Form  No.  1130.  Order  to  show  cause 1833 

Form  No.  1131.  Order  suspending  power  of  executor 1834 

Form  No.  1132.  Restraining  order  to  executor,   and  order  to 

show  cause  1834 

Form  No.  1133.  Order  revoking  letters  testamentary 1835 

5  483.  Annotations   1835 


Ch.  CXXXVI.]  NOTICES.— FORMS.  ig29 

§480.     NOTICE  OF  PENDENCY  OF  ACTION. 
FORM   No.  1117— Common  form. 
}       [Title  of  court  and  cause.] 

Notice  is  hereby  given,  that  on  the  day  of  ,  19        an 

action  was  commenced  in  the  above-entitled  court  and  cause  for  the 
[here  state  the  nature  of  the  action  affecting  the  title  or  right  of 
possession  of  the  real  property  involved]  ;  that  the  names  of  the  par- 
ties here  o  are  as  follows:  [Here  name  all  the  parties,  and  whether 
plaintiff  or  defendant]  ;  that  the  object  of  said  action  [or  defense] 
is  as  follows :  [Here  state  the  object  of  the  action  or  defense,  whether 
foreclosure,  to  quiet  title,  ejectment,  for  partition,  to  establish  a 
trust  in  the  lands,  etc.]  ;  that  the  following  is  a  description  of  the 
property  affected  by  said  action  [or  defense],  to  wit:  [Here  describe 
property,  following  the  same  description  as  contained  in  the  com- 
plaint, or  cross-complaint,  etc.] 

[Date.]  [Signature  of  plaintiff.] 

Or,  A.  B.,  Attorney  for  plaintiff. 

[Under  the  statutes,  generally,  the  plaintiff,  where  the  complaint  (or  petition) 
affects  the  title  or  the  right  of  possession  to  real  property,  or  the  defendant,  cross- 
complainant,  or  intervener,  where  an  affirmative  cause  is  set  up  in  the  answer, 
cross-complaint,  or  complaint  in  intervention,  may,  and  should,  record  at  the  time 
of  filing  the  particular  pleading,  or  within  a  time  subsequently  as  provided  by 
statute,  a  notice  of  the  pendency  of  the  action.  A  reference  should  be  made  to 
the  particular  statute  of  the  state  relating  to  such  notice  as  to  the  time  and  manner 
of  recording  the  same.] 

§481.     NOTICES,  GENERALLY. 
FORM    No.  1118 — Notice  of  decision. 

[Title  of  court  and  cause.] 

To  defendant,  ,  and  to  ,  his  attorney: 

You  will  please  take  notice,  that  in  the  above-entitled  action 
decision  was  rendered,  and  written  findings  of  fact  and  conclusions 
of  law  signed  and  filed  therein,  on  ,  19     ,  in  favor  of  plaintiff 

and  against  the  defendant,  in  accordance  with  the  prayer  of  plaint- 
iff's complaint;  that  judgment  and  decree  were  thereupon  on  said 
day  signed  and  filed  in  favor  of  plaintiff  and  against  defendant 
[quieting  the  title  of  plaintiff  as  against  said  defendants  in  and  to 
the  real  estate  in  plaintiff's  complaint  described;  or  state  substance 
of  other  relief  granted]  ;  that  said  decree  and  judgment  has  been 
entered  in  the  office  of  the  county  clerk  of  the  county  of  state 

of 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

Jury's  PI.— 116. 


1830  NOTICES,  MOTIONS,  AND  ORDERS.  [Tit.  XVII. 

FORM   No.  1119 — Notice  of  decision    in   favor  of  defendants  and   cross-com- 
plainant. 

(In  Gish  v.  Ferrea,  10  Cal.  App.  53;  101  Pac.  27.) 

[Title  of  court  and  cause.] 

To  the  above-named  plaintiff,  and  to  Hugo  D.  Newhouse.  Esq.,  her 
attorney  : 

You,  and  each  of  you,  will  please  take  notice,  that  the  above- 
entitled  court  has  rendered  judgment  in  favor  of  defendants,  and  in 
favor  of  cross-complainant,  J.  P.  LeFevre,  and  against  plaintiff,  in 
the  above-entitled  action  [etc.,  as  in  preceding  form]. 

Dated  this  16th  day  of  April,  1908.  Berry  &  Brady, 

Attorneys  for  defendants  and  cross-complainant. 

[Endorsement  of  filing.] 

FORM   No.  1120 — Notice  of  time  of  trial.     (With  waiver  by  plaintiff  of  trial 
by  jury.) 

[Title  of  court  and  cause.] 

To  the  defendants  in  the  above-entitled  action,  and  their  respect- 
ive attorneys : 

You  are  hereby  notified,  that  the  trial  of  the  above-named  cause 
has  been  set  for  the  hour  of  10  o'clock  A.  M.  on  ,  19     ,  at  the 

courtroom  of  said  court,  in  the  courthouse  at  ,  in  the  county 

of  ,  and  that  said  cause  will  be  tried  at  said  time  and  place,  and 

you  are  further  notified  that  the  plaintiff  hereby  waives  a  trial  by 
jury. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

FORM   No.  1121 — Notice  to  produce  documents  for  use  on  the  trial. 

[Title  of  court  and  cause.] 

To  defendant,  ,  and  to  ,  his  attorney : 

Notice  is  hereby  given  to  you,  and  each  of  you,  that  plaintiff 
hereby  demands  of  you,  and  of  each  of  you,  that  you  have  and  pro- 
duce at  the  trial  of  the  above-named  action  set  for  ,19  ,  at 
the  hour  of  10  o'clock  A.  M.  at  the  courthouse  in  the  county  of  ,. 
state  of             ,  the  following : 

[Here  designate  books,  papers,  etc.,  desired.]  And  you  are  hereby 
notified,  that  upon  the  failure  upon  the  part  of  you,  or  either  of  you, 
to  have  said  [here  designating]  at  said  trial,  plaintiff  will  object  to 


Ch.  CXXXVI.]  NOTICES.— FORMS.  1831 

the  admission  of  any  evidence  concerning  any  matter  relating  to 
matters  set  forth  or  referred  to  in  said  [here  designate  books,  etc., 
as  above]. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

FORM    No.   1122 — Notice  of  motion  to  dismiss  action. 

(In  Siskiyou  County  Bank  v.  Hoyt,  132  Cal.  81;  64  Pac.  118.) 

[Title  of  court  and  cause.] 

To  plaintiff,  and  to  Messrs.  Gillis  &  Tapscott,  its  attorneys : 

You  will  please  take  notice,  that  Elizabeth  Hoyt,  one  of  the  defend- 
ants in  the  above-entitled  action,  will  make  special  appearance  in 
said  cause,  before  said  court,  and  for  that  purpose  only,  will,  upon 
the  23d  day  of  December,  1899,  at  the  hour  of  ten  o'clock  A.  M.,  or  as 
soon  thereafter  as  counsel  can  be  heard,  move  this  court  to  dismiss 
said  action. 

Said  motion  will  be  made  upon  the  records,  files,  and  papers  in 
said  cause,  and  upon  the  ground  that  no  summons  was  ever  issued 
within  a  year  after  the  filing  of  the  complaint  therein ; 

Also  upon  the  ground  that  no  service  of  the  complaint  or  summons 
has  ever  been  made  upon  her  within  the  period  of  three  years  before 
the  commencement  of  said  action;  and  that  she  has  never  appeared 
or  made  answer  to  said  complaint. 

[Date.]  Warren  &  Taylor, 

Attorneys  for  defendants. 

FORM   No.   1123 — Notice  of  overruling  demurrer  and  granting  time  to  answer. 

[Title  of  court  and  cause.] 

To  the  defendant  in  the  above-entitled  action,  and  to  A.  B.,  his 
attorney : 

Please  take  notice,  that  the  demurrer  interposed  by  you  to  the 
complaint  of  plaintiff  herein  was  on  the  day  of  ,  19       by 

the  court  overruled;  and  by  said  order  you  have  been  granted  ten 
days  from  the  date  of  this  notice  in  which  to  answer  the  complaint 
herein. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

[Admission  of  service — annexed  to  foregoing  notice,  upon  service  thereof.] 

Due  service  of  the  foregoing  notice  of  overruling  demurrer  is 
hereby  admitted  this  day  of  ,  19     . 

C.  D.,  Attorney  for  defendant. 


1832  NOTICES.  MOTIONS.  AND  ORDERS.  ITit.  XVII. 

§482.     ORDERS. 

FORM   No.  1124 — Order  extending  time  to  plead. 

[Title  of  court  and  cause.] 

Good  cause  appearing  therefor,  it  is  hereby  ordered,  that  the 
defendant,  ,   have   to   and   including   the  day   of  , 

19     ,  in  which  to  plead  to  the  complaint  [or  other  paper,  naming  it] 
herein. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1125 — Order  assigning  cause. 

(In  Dodge  v.  Ridenour,  62  Cal.  263.) 
[Title  of  court  and  cause.] 

It  is  ordered,  that  the  above-entitled  cause,  pending  in  the  district 
court  of  the  twelfth  judicial  district  of  the  state  of  California,  in  and 
for  the  city  and  county  of  San  Francisco,  on  the  31st  day  of  Decem- 
ber, 1879,  be  and  the  same  is  hereby  assigned  to  department  No.  2  of 
this  court. 

William  P.  Daingerfield, 

Superior  Judge,  presiding. 

FORM   No.  1126 — Order  denying  or  overruling  motion  in  general. 

[Title  of  court  and  cause.] 

Hearing  upon  motion  of  plaintiff  [or  defendant]  herein  [here  des- 
ignate the  nature  of  the  motion],  coming  on  this  day  regularly  to  be 
heard,  and  the  same  being  submitted,  said  motion  is  hereby  granted 
[or  denied].     [If  the  motion  be  granted,  state  effect  specifically.] 

[Date.]  S.  T.,  Judge. 

FORM   No.  1127 — Order  on  motion  to  strike  pleading  from  the  files. 

[Title  of  court  and  cause.] 

The  motion  of  the  plaintiff  [or  defendant]  herein  to  strike  out  the 
answer  [or  other  pleading  to  which  motion  is  directed,  naming  it], 
coming  on  regularly  to  be  heard,  and  the  court  being  duly  advised 
in  the  premises,  the  said  motion  is  hereby  denied  [or  granted,  as  the 
case  may  be]. 

[Date.]  S.  T.,  Judge. 


Ch.  CXXXVI.]  ORDERS.— FORMS.  1833 

FORM   No.  1128 — Order  granting  time  to  answer  upon   overruling  demurrer. 

(In  Braly  v.  Fresno  City  R.  Co.,  9  Cal.  App.  417;  99  Pac.  400.) 

[Title  of  court  and  cause.] 

It  is  ordered,  that  the  demurrer  of  defendant  to  the  complaint  of 
plaintiff  be  and  the  same  is  hereby  overruled,  and  defendant  is 
hereby  granted  ten  days  in  which  to  answer  after  notice. 

[Date.]  George  E.  Church, 

Judge  of  Superior  Court. 

FORM    No.   1129 — Order  granting  time  to  amend  after  sustaining  demurrer. 
(In  McFarland  v.  Matthai,  7  Cal.  App.  599;  95  Pac.  179.) 

[Title  of  court  and  cause.] 

The  demurrer  in  the  above-entitled  action  coming  on  regularly  to 
be  heard,  P.  S.  King  appearing  for  the  plaintiff,  and  Louise  Matthai, 
one  of  the  defendants,  appearing  for  the  defendants: 

The  court,  after  hearing  the  argument,  orders  that  the  demurrer 
be  and  the  same  is  hereby  sustained,  and  the  defendants  are  given 
ten  days  to  amend  their  [cross-]  complaint  herein. 

In  open  court,  Jan.  29,  1900. 

FORM    No.   1130 — Order  to  show  cause. 

[Title  of  court  and  cause.] 

On  reading  the  petition  of  A.  B.,  [creditor  of  the  above-named 
decedent,]  this  day  presented  to  me  in  the  above-entitled  proceeding, 
praying  that  an  order  may  be  made  in  said  matter  adjudging  and 
decreeing  that  [here  state]  ;  and  it  appearing  to  me  from  said  petition 
[that  it  is  necessary  to  sell  some  portion  of  the  property  belonging  to 
said  estate  for  the  purpose  of  paying  the  debts  outstanding  against 
the  decedent,  etc.]  ;  it  is  ordered,  that  said  petition  be  filed  with  the 
clerk  of  this  court,  and  that  all  persons  interested  in  the  said  estate 
appear  before  this  court  on  the  day  of  ,  19     ,  at 

o'clock  A.  M.  of  said  day,  at  the  courtroom  thereof,  department 
No.  ,  at  ,  in  the  city  of  ,  then  and  there  to  show 

cause,  if  any  they  have,  why  an  order  shall  not  be  granted  [directing 
a  sale  of  a  portion  of  the  property  of  the  said  estate,  as  prayed  for  in 
the  said  petition,  etc.].  And  it  is  further  ordered,  that  a  copy  of  this 
order  be  published  once  a  week  for  four  successive  weeks  in  "The 
Daily  ,"  a  newspaper  published  in  the  said  county  of 

[Date.]  S.  T.,  Judge. 


1834  NOTICES,  MOTIONS,  AND  ORDERS.  [Tit.  XVII. 

FORM   No.   1131 — Order  suspending  power  of  executor. 

[Title  of  court  and  cause.] 

T.  M.,  widow  of  L.  M.,  deceased,  having  heretofore  presented  her 
petition  asking  for  the  suspension  of  the  powers  of  X.  Y.,  executor 
of  the  last  will  of  said  deceased,  and  presenting  her  reasons  therefor, 
and  the  court  having  examined  said  petition  and  certain  proofs  in 
support  thereof,  and  it  appearing  to  the  court  that  there  is  reason  to 
believe  that  the  said  X.  Y.,  executor  of  the  last  will  of  the  said 
deceased,  [has  wasted  and  mismanaged  the  property  of  the  said 
estate  committed  to  his  charge,  and  has  committed  fraud  upon  the 
said  estate,  and  has  wrongfully  neglected  the  said  estate,  in  the  par- 
ticulars stated  in  said  petition,  etc.]  : 

It  is  by  the  court  ordered,  that  the  powers  of  the  said  X.  Y.,  as 
executor  of  the  last  will  of  said  L.  M.,  deceased,  be  and  the  same  are 
hereby  suspended  until  the  matters  alleged  in  said  petition  are  inves- 
tigated as  herein  provided. 

And  it  is  further  ordered,  that  the  said  X.  Y.  be  cited  to  appear 
before  this  court,  in  department  No.  thereof,   on  ,   the 

day  of  ,  19     ,  at  o'clock       M.  of  that  day,  then 

and  there  to  show  cause,  if  any  he  has,  why  the  letters  testamentary, 
heretofore  issued  to  him  as  executor  of  the  last  will  of  said  L.  M., 
deceased,  should  not  be  revoked. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1132 — Restraining  order  to  executor,  and  order  to  show  cause. 

[Title  of  court  and  cause.] 

Upon  reading  and  filing  the  petition  of  T.  M.,  widow  of  said 
deceased,  entitled  "Petition  of  T.  M.  for  a  restraining  order  and  for 
citation  to  the  executor,"  and  good  cause  appearing  therefor: 

It  is  by  the  court  ordered,  that  X.  Y.,  executor  of  the  will  of  said 
L.  M.,  deceased,  be  and  he  is  hereby  enjoined  and  restrained  until  the 
further  order  of  the  court  from  [state  the  acts  enjoined]. 

And  it  is  further  ordered,  that  said  X.  Y.,  as  said  executor,  appear 
Knd  show  cause  herein,  if  any  he  has,  at  the  courtroom,  department 
No.  of  this  court,  at  o'clock       M.   on  ,  the 

day  of  ,  19     ,  why  the  prayer  of  said  petition  should  not  be 

granted. 

[Date.]  S.  T.,  Judge. 


Ch.  CXXXVI.]  ANNOTATIONS,  ETC.  1835 

FORM    No.   1133 — Order  revoking  letters  testamentary. 

[Title  of  court  and  cause.] 

The  court  having  heard  the  testimony  produced  at  the  trial  upon 
the  issues  made  by  the  petition  of  T.  M.,  widow  of  said  deceased,  for 
the  revocation  of  the  letters  testamentary  heretofore  issued  to  X.  Y., 
and  the  answer  [or  return]  of  the  said  X.  Y.  thereto,  and  the  matter 
having  been  submitted  to  the  court,  after  argument,  for  decision, 
and  the  court  having  made  and  filed  its  findings  of  fact  and  conclu- 
sions of  law ;  it  is  now  by  the  court,  in  accordance  with  said  findings 
of  fact  and  conclusions  of  law : 

Ordered,  adjudged,  and  decreed,  that  said  letters  testamentary 
heretofore  issued  to  said  X.  Y.,  as  executor  of  the  last  will  of  L.  M., 
deceased,  be  and  the  same  are  hereby  revoked. 

[Date.]  S.  T.,  Judge. 

§483.     ANNOTATIONS. — Notices,  motions,  and  orders. 

1,  2.   "Motion"   denned. — Not  a  pleading. 

3.  Petition  as   motion. 

4.  Order  to  show  cause  as  motion. 

5.  Motion    distinguished    from    notice. 

6.  Leave  to  renew  motion. 

7,  8.  Motion  as   remedy  to  set  aside  judgment  procured  by  fraud. 
9.  Motion  granted  on  one  of  many  grounds. 
10.   "Order"   denned. 
11,  12.  Interlocutory  decree  as  an  order. 

13.  Judgment,  so-called,  as  an  order. 

14.  Amending  record  by  nunc  pro  tunc  order. 

1.  "Motion"  defined. — A  motion  is  an  4.  Order  to  show  cause  as  motion. — 
application  for  an  order  or  direction  of  An  order  to  show  cause  returnable  at 
the  court  not  included  in  the  judgment:  a  specified  time  less  than  that  pre- 
Estate  of  Harrington,  147  Cal.  124,  128,  scribed  by  statute  is  the  equivalent  of 
SI  Pac.  546.  And  see  Williams  v.  Haw-  a  motion  and  order  shortening  time  for 
ley,  144  Cal.  97,  77  Pac.  762,  citing  the  the  hearing  thereof:  Dabman  v.  White, 
California  code  definition,  that  a  motion  48  Cal.   439,   451. 

is    an    application    for    an    order    (§  1003,  5.   Motion   distinguished   from    notice 

Cal.    C.   C.    P.).  A  notice  of  motion  is  distinct  from  the 

2.  A  motion  is  not  a  pleading  within  motion  itself.  Notice  alone  is  not  suf- 
the  meaning  of  that  term:  Graff  v.  ficient  on  appeal  to  show  the  making 
Dougherty,  139  Mo.  App.  56,  120  S.  W.  of  a  motion:  Herrlich  v.  McDonald,  SO 
«61,    663.  Cal.   472,   474,   22  Pac.   299. 

3.  Petition  as  motion. — A  petition  to  6.  Leave  to  renew  a  motion  once  de- 
a  court  of  equity  for  an  order  directing  nied  lies  in  the  discretion  of  the  court: 
the  payment  of  moneys  in  the  hands  of  Mace  v.  O'Reilly,  70  Cal.  231,  11  Pac. 
a  receiver  is  a  motion.     It  is  of  no  con-  721. 

sequence  whether  the  verified  statement  7.   Motion    as    remedy    to    set    aside    a 

of  the  petitioner  be  termed  a  complaint,  judgment   procured   by  fraud. — A  motion 

a  petition  in  the  nature  of  a  complaint,  predicated      in      part      upon      equitable 

or  an  affidavit:  California  Title  Ins.  etc.  grounds   which   would   no   doubt   support 

Co.   v.   Consolidated   P.    C.    Co.,    117   Cal.  a  bill  in  equity  on   the  ground  of  fraud 

237,   240,  49  Pac.  1.  perpetrated   in    the    act    of   procuring   a 


1836 


AFFIDAVITS,  DEPOSITIONS,  ETC. 


[Tit.  XVII. 


judgment  Is  proper  to  secure  relief  to 
set  aside  such  judgment.  The  ancient 
right  founded  on  the  grounds  coram 
nobis  is  superseded  in  our  practice  by 
the  modern  motion  to  the  same  effect: 
Graff  v.  Dougherty,  139  Mo.  App.  56,  120 
S.  W.  661,  662,  citing  Downing  v.  Still, 
43  Mo.  309;  Cross  v.  Gould,  131  Mo.  App. 
585,  110  S.  W.  672;  Fisher  v.  Fisher,  114 
Mo.   App.   627,   90  S.  W.   413. 

8.  Where  a  motion  is  made  to  set 
aside  a  judgment  rendered  against  a  de- 
fendant in  his  absence,  and  no  defense 
other  than  that  stated  in  the  answer  is 
presented,  the  question  thereupon  rests 
on  the  sufficiency  of  such  answer,  and 
where  this  Is  insufficient,  the  judgment 
is  proper,  and  the  motion  to  set  it  aside 
will  therefore  be  denied:  Plunkett  v. 
State  National  Bank,  90  Ark.  86,  117  S. 
W.   1079,   1080. 

9.  Motion  granted  on  one  of  many 
grounds. — Where  the  granting  of  an  or- 
der is  proper  upon  any  of  the  statutory 
grounds,  the  court  may  grant  the  mo- 
tion on  one  of  the  grounds  stated,  and 
may  disregard  other  grounds:  Toy  v. 
Haskell,  128  Cal.  55S,  561,  61  Pac.  89,  79 
Am.    St.    Rep.    70. 

10.  "Order"  defined. — An  order  is  a  de- 
cision made  during  the  progress  of  the 
cause,  either  prior  or  subsequent  to  final 
judgment,  settling  some  point  of  prac- 
tice, or  some  question  collateral  to  the 
main    issue    presented    by    the    pleadings 


and  necessary  to  be  disposed  of  before 
such  issue  be  passed  upon  by  the  court, 
or  necessary  to  be  determined  in  carry- 
ing into  execution  the  final  judgment: 
Loring  v.  Illsley,  1  Cal.  24,  27;  Estate  ©f 
Rose,  80  Cal.  166,  170,  22  Pac.  86;  Estate 
of  Smith,  98  Cal.  636,  640,  33  Pac.   744. 

11.  An  Interlocutory  decree  is  an  or- 
der, and  not  a  judgment,  in  so  far  that, 
except  where  expressly  provided  by  stat- 
ute, an  appeal  will  not  lie;  but  it  may 
be  reviewed  on  an  appeal  from  the  judg- 
ment: Watson  v.  Sutro,  77  Cal.  609,  611, 
20  Pac.  88. 

12.  An  interlocutory  decree  in  probate 
settling  an  administrator's  accounts  is 
not  a  final  judgment,  but  a  mere  order: 
Estate  of  Rose,  80  Cal.  166,  169,  22  Pac. 
86. 

13.  Judgment,  so-called,  as  an  order. — 
The  judgment  of  a  court  refusing  to 
admit  a  will  to  probate  is  not  a  final 
judgment,  but  an  order  of  court:  Estate 
of  Smith,  98  Cal.  166,  638,  33  Pac.  744. 

14.  Amending  record  by  nunc  pro  tunc 
order. — The  authority  of  a  court  to 
amend  its  record  by  a  nunc  pro  tunc 
order  is  to  make  it  speak  the  truth,  but 
not  to  make  it  speak  what  it  did  not 
speak,  but  ought  to  have  spoken: 
Tucker  V.  Hawkins,  72  Ark.  21,  77  S.  W. 
902;  Liddell  v.  Landan,  87  Ark.  438,  112 
S.  W.  1085;  Boulden  v.  Jennings  (Ark.), 
122   S.    W.    639,    641. 


CHAPTER  CXXXVII. 

Affidavits,  Depositions,  and  Stipulations. 

Page 

484.  Affidavits 1837 

Form  No.  1134.  Affidavit  of  service  of  notice  on  a  person  not 

an  attorney 1837 

Form  No.  1135.  Affidavit  of  service  of  notice  by  mail 1837 

Form  No.  1136.  Affidavit  of  service  of  notice  on  an  attorney 

absent  from  his  office 1838 

Form  No.  1137.  Affidavit  of  service  of  notice  on  an  attorney  at 

his  residence  when  his  office  is  closed 1838 

Form  No.  1138.  Affidavit  of  service  of  notice  on  an  attorney  at 

office  in  charge  of  a  clerk  or  other  person. .     1839 
Form  No.  1139.  Affidavit  of   service   of   summons   on   several 
defendants.      (Endorsed    on    original    sum- 
mons.)        1839 

Form  No.  1140.  Affidavit  of  service  of  citation 1840 


Ch.  CXXXVII.]                        AFFIDAVITS.— FORMS.  1837 

§  485.  Depositions * 1840 

Form  No.  1141.  Stipulation  of  counsel  to  take  depositions 1840 

Form  No.  1142.  Affidavit  upon  taking  deposition  of  defendant 

as  witness  for  plaintiff 1841 

Form  No.  1143.  Affidavit  for  taking  the  deposition  of  a  resi- 
dent witness 1841 

Form  No.  1144.  Affidavit  and  application  for  commission  for 
the  taking  of  the  deposition  of  a  non-resi- 
dent witness 1842 

Form  No.  1145.  Notice  of  taking  of  deposition 1842 

Form  No.  1146.  Commission  to  take  deposition  of  witness....  1843 

Form  No.  1147.  Instructions  to  commissioner 1843 

Form  No.  1148.  Deposition  of  witness.     (To  be  annexed  to  the 

commission.)  1846 

§  486.  Stipulations 1847 

Form  No.  1149.  Waiver  of  answer  1847 

Form  No.  1150.  Stipulation  to  transfer  cause  to  another  de- 
partment     1847 

Form  No.  1151.  Stipulation  to  dismiss  appeal 1848 

Form  No.  1152.  Stipulation  as  to  facts 1848 

Form  No.  1153.  Stipulation  to  restore  and  file  original  com- 
plaint destroyed  by  fire 1849 

§  487.  Annotations 1849 


§484.     AFFIDAVITS. 

FORM   No.  1134 — Affidavit  of  service  of  notice  on  a  person  not  an  attorney. 

[Venue.] 

,  being  duly  sworn,  says :  That  he  served  the  notice  [or 
other  paper,  naming  it],  of  which  the  annexed  is  a  true  copy,  on 
[naming  the  person  served]    on  the  day  of  ,   19     ,   by 

delivering  said  notice  [or  other  paper,  naming  it]  to  said  per- 

sonally, at  his  residence  in  the  city  [or  town]  of  .     [In  case  of 

a  notice,  service  is  generally  required  by  statute  to  be  made  upon  the 
attorney,  hence  the  affiant  should  add,  where  service  of  notice  is 
made,  the  reasons  why  service  could  not  be  made  on  the  attorney.] 

[Signature.] 

[Jurat.] 

FORM   No.  1135 — Affidavit  of  service  of  notice  by  mail. 

[Venue.] 

,  being  duly  sworn,  says:  That  he  is  the  attorney  for  the 
plaintiff  [or  defendant]  in  the  action  entitled  in  the  notice,  of  which 
the  annexed  is  a  true  copy ;  that  he  served  said  notice  on  ,  the 


1838  AFFIDAVITS,  DEPOSITIONS,  ETC.  [Tit.  XVII. 

attorney  for  the  defendant  [or  plaintiff]  in  said  action,  on  the 
day  of  ,  19     ,  by  depositing  said  notice  on  said  day  of 

in  the  post-office  at  the  city  [or  town]  of  ,  in  the  state 

of  ,  enclosed  in  a  sealed  envelope,  directed  to  said  , 

attorney  for  defendant    [or  plaintiff],  at  his  address,  to  wit,  No. 
Street,  city  of  ,  state  of  ,  which  city  [or  town]  of 

was  then  the  place  of  residence  of  said  ;  that  affiant  pre- 

paid the  postage  thereon ;  that  there  was  then,  and  has  been  ever 
since,  a  regular  communication  by  mail  between  said  cities  [or 
towns]  ;  that  said  attorney  for  defendant  [or  plaintiff]  had  no  office 

in  said  city  of  at  that  time.  ro.  , 

[Signature.] 

[Jurat.] 

FORM   No.  1136 — Affidavit  of  service  of  notice  on   an  attorney  absent  from 
his  office. 

[Venue.] 

,  being  duly  sworn,  deposes  and  says :  That  he  is  the  attor- 
ney for  the  plaintiff  [or  defendant]  in  the  action  entitled  in  the 
notice,  of  which  the  annexed  is  a  true  copy;  that  he  served  said 
notice  on  ,  the  attorney  for  defendant   [or  plaintiff]   in  said 

action,  by  leaving  the  same  in  the  office  of  said  ,  No. 

Street,  in  the  city  of  ,  in  this  state,  on  the  day  of  , 

19  ,  at  or  about  the  hour  of  M.  of  said  day  [observing  the 
statute  as  to  service  required  to  be  made  during  business  hours], 
and  in  a  conspicuous  place  on  the  desk  of  said  ,  in  his  said 

office ;  that  there  was  no  one  in  charge  of  the  said  office  at  the  time 

of  such  service.  ro.        ,        , 

[Signature.] 

[Jurat.] 

FORM   No.  1137 — Affidavit  of  service  of  notice  on  an  attorney  at  his  residence 
when  his  office  is  closed. 

[Venue.] 

,  being  duly  sworn,  says:  That  he  is  the  attorney  for  the 
plaintiff  [or  defendant]  in  the  action  entitled  in  the  notice,  of  which 
the  annexed  is  a  copy;  that  affiant  served  said  notice  on  ,  the 

attorney  of  the  defendant  [or  plaintiff]  named  in  said  action  in  the 
city  [or  town]  of  ,  in  this  state,  on  the  day  of  ,19     ,  by 

leaving  said  notice  at  the  residence  of  said  ,  in  said  city  [or 


Ch.  CXXXVIL]  AFFIDAVITS.— FORMS.  Is:!!) 

town]  of  ,  with  ,  who  was  then  over  years  of  age, 

and  was  and  is  a  person  of  discretion,  and  who  resided  at  the  said 
residence  of  said  at  the  time  of  said  service;  that  the  office  of 

said  was  not  open  at  the  time  said  service  was  made ;  and  that 

said  office  was  then  in  the  county  in  which  his  said  residence  was 
situated. 

[Signature.] 

[Jurat.] 


FORM    No.  1138 — Affidavit  of  service  of  notice   on   an   attorney   at   office   in 
charge  of  a  clerk  or  other  person. 

[Venue.] 

,  being  duly  sworn,  says:  That  he  is  the  attorney  for  the 
plaintiff  [or  defendant]  in  the  action  entitled  in  the  notice,  of  which 
the  annexed  is  a  true  copy;  that  he  served  said  notice  on  ,  the 

attorney  for  the  defendant  [or  plaintiff]  named  in  said  action,  by 
delivering  the  same  to  [here  naming  the  clerk  or  other  person  in 
charge]  in  the  office  of  said  ,  who  at  the  time  of  such  service 

was  the  clerk  [or  had  charge  of  said  office]  of  said  ;  that  the 

said  attorney  for  the  defendant  [or  plaintiff]  was  absent  from  his 
said  office  at  the  time  of  said  service. 

[Signature.] 

[Jurat.] 

FORM   No.  1139 — Affidavit    of    service    of    summons    on    several    defendants. 
(Endorsed  on  original  summons.) 

State  of  , "] 

County  of  .  j 

,  being  duly  sworn,  deposes  and  says :  That  he  is,  and  was  at 
the  time  of  the  service  of  the  summons  herein  referred  to,  a  citizen  of 
the  United  States,  over  the  age  of  eighteen  years,  and  not  a  party  to 
the  within-entitled  action ;  that  he  personally  served  the  within  sum- 
mons on  the  hereinafter-named  defendants,  whom  deponent  knew  to 
be  the  persons  named  in  the  summons,  by  delivering  to  and  leaving 
with  each  of  said  defendants  personally,  at  the  places  hereinafter  set 
forth,  in  the  state  of  ,  and  at  the  time  set  opposite  their  respect- 

ive names,  a  copy  of  said  summons  attached  to  a  copy  of  the  com- 
plaint referred  to  in  said  summons. 


1840  AFFIDAVITS,  DEPOSITIONS,  ETC.  [Tit.  XVIL 


Names  of  defendants 
served : 


Place  where  served: 


Time  of  service: 


[Affiant's  signature.] 
[Jurat.] 

FORM   No.  1140 — Affidavit  of  service  of  citation. 

[Title  of  court  and  cause.] 
State  of  ,  ~) 

County  of  .J 

J.  F.,  being  duly  sworn,  says:  That  he  is  a  citizen  of  the  United 
States  and  of  the  state  of  ,  and  over  the  age  of  twenty-one 

years;  that  he  is  not  interested  in  the  within-named  matter,  and  is 
competent  to  be  a  witness  upon  the  hearing  thereof;  that  on  the 
day  of  ,  19     ,  he  served  the  within  original  citation  upon 

X.  Y.,  the  executor  of  the  last  will  and  testament  of  L.  M.,  deceased, 
in  the  city  of  ,  county  of  [by  showing  him  said  original 

and  delivering  a  true  copy  thereof  to  him]  ;  that  affiant  also  served 
upon  said  X.  Y.,  as  such  executor,  personally,  a  copy  of  the  order  to 
show  cause  pursuant  to  which  said  citation  was  issued,  and  a  copy  of 
the  petition  mentioned  in  said  citation,  by  delivering  copies  of  each 
thereof  to,  and  leaving  the  same  with,  the  said  X.  Y. 

[Affiant's  signature.] 

[Jurat.] 

§485.     DEPOSITIONS. 

FORM   No.  1141 — Stipulation  of  counsel  to  take  depositions. 

[Title  of  court  and  cause.] 

It  is  hereby  stipulated  by  the  parties  hereto,  that  the  deposition 
of  ,  a  witness  on  behalf  of  the  plaintiff  [or  defendant]  in  this 

action   [or  proceeding],  be  taken  before  ,  a  notary  public  in 

and  for  the  county  of  ,  in  the  state  of  ,  at  his  office  in  said 

county  of  ,  on  the  day  of  ,  19     ,  commencing  at 

[state  the  time]  ;  and  it  is  further  stipulated,  that  when  taken  and 
certified  to  by  said  officer,  and  transmitted  to  the  clerk  of  said  court, 
such  deposition  may  be  read  by  either  party  to  the  action  [or  pro- 
ceeding] as  evidence  on  the  trial  of  the  action  [or  proceeding],  sub- 


Ch.  CXXXVIL]  DEPOSITIONS.— FORMS.  1841 

ject,  however,  to  all  legal  objections  and  exceptions  that  could  be 
taken  in  case  the  witness  was  personally  present  and  testified  in  the 
action. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

C.  D.,  Attorney  for  defendant. 

FORM    No.  1142 — Affidavit    upon   taking    deposition   of   defendant   as   witness 
for  plaintiff. 

[Title  of  court  and  cause.] 
State  of  California, 


County  of 

,  being  duly  sworn,  deposes  and  says :  That  he  is  one  of  the 
attorneys  for  plaintiff  in  the  above-entitled  action;  that  the  sum- 
mons in  said  action  has  been  heretofore  served  upon  ,  defend- 
ant in  said  action;  that  said  defendant,  ,  is  a  party  to  said 
action,  and  has  heretofore  appeared  and  answered  therein ;  that  said 
,  defendant,  resides  in  the  county  of  ,  state  of  Califor- 
nia, and  within  twenty-five  miles  of  the  city  of  ,  in  said  county 
of  ,  and  within  said  distance  of  the  office  of  ,  a  notary 
public  in  and  for  said  County,  before  whom  the  deposition  of 
said  defendant  is  noticed  to  be  taken. 

[Signature  of  affiant.] 

[Jurat.] 

FORM   No.  1143 — Affidavit  for  taking  the  deposition  of  a  resident  witness. 

[Title  of  court  and  cause.] 

[Venue.] 

A.  B.,  being  duly  sworn,  deposes  and  says :  That  he  is  the  plaintiff 
[or  the  defendant]  in  the  above-entitled  action  [or  proceeding]  ; 
that  the  summons  in  the  action  has  been  served  [or,  that  the  defend- 
ant has  appeared  therein ;  or,  in  a  special  proceeding,  that  a  question 
of  fact  has  arisen  therein]  ;  that  C.  D.  is  a  material  witness  for  the 
plaintiff  [or  the  defendant]  for  the  trial  of  the  action  [or  proceed- 
ing]. [Here  state  the  facts  showing  the  case  to  be  one  in  which  a 
deposition  may  be  taken  as  provided  in  the  code.] 

[Signature  of  affiant.] 

[Jurat.] 


j  g^2  AFFIDAVITS,  DEPOSITIONS,  ETC.  [Tit.  XVII. 

FORM   No.  1144 — Affidavit  and  application  for  commission  for  the  taking  of 
the  deposition  of  a  non-resident  witness. 

[Title  of  court  and  cause,  or  proceeding.] 

[Venue.] 

A.  B.,  being  duly  sworn,  says:    That  he  is  the  attorney  for  the 
plaintiff  [or  petitioner]  in  the  above-entitled  action  [or  proceeding]  ;" 
that  C.  D.  is  a  material  witness  for  the  plaintiff  [or  petitioner]  in 
said  action  [or  proceeding],  and  that  said  witness  does  not  reside  in 
this  state,  but  resides  at  ,  in  the  county  of  ,  in  the  state 

[or  territory]  of 

Affiant  therefore  asks  that  a  commission  issue  out  of  this  court  to 
take  the  deposition  of  said  witness,  and  that  there  be  attached  to 
such  commission  interrogatories  and  cross-interrogatories  settled  by 
the  Hon.  ,  judge  of  said  court,  on  which  such  deposition  is  to  be 

taken ;  that  the  annexed  are  interrogatories  proposed  by  the  plaintiff 
on  which  such  deposition  is  to  be  taken.        [Signature  of  affiant] 

[Jurat.] 

[Annex  list  of  proposed  interrogatories.] 

FORM   No.  1145 — Notice  of  taking  of  deposition. 

[Title  of  court  and  cause.] 

Notice  is  hereby  given,  that  the  deposition  of  K.  L.,  a  witness  in 
behalf  of  the  plaintiff  [or  defendant]  in  this  action  [or  proceeding], 
will  be  taken  before  M.  N.,  a  notary  public  [or  other  officer  author- 
ized to  take  depositions,  designating],  at  his  office  in  the  city  [or 
town]  of  ,  county  of  ,  in  this  state,  commencing  at 

o'clock       M.,  of  the  day  of  ,  19      ;  and,  if  not  completed  on 

that  day,  that  the  taking  of  the  same  will  be  continued  thereafter, 
and  from  day  to  day,  and  over  legal  holidays,  until  such  deposition  is 
fully  taken. 

And  you  will  further  take  notice,  that  the  annexed  is  a  copy  of  the 
affidavit  [and  order]  showing  that  this  is  a  proper  case,  and  authoriz- 
ing the  taking  of  said  deposition. 

[Date.]  [Signature  of  attorney  for  plaintiff  or  defendant.] 

[Address  to  the  attorney  of  the  adverse  party.] 


Ch.CXXXVII.J  DEPOSITIONS.— FORMS.  1843 

FORM    No.   1146 — Commission  to  take  deposition  of  witness. 
[Title  of  court  and  cause,  or  proceeding.] 
The  people  of  the  state  of  ,  to  ,  greeting: 

Whereas,   it  appears  to  the  judge  [s]    of  our  court  of  the 

county  of  ,  state  of  ,  that  ,  residing  at  ,   in 

the  of  ,  is  a  material  witness  in  a  certain  action  now 

pending  in  our  said  court,  between  ,  plaintiff,  and  , 

defendant,  [or  in  the  matter  or  proceeding  above  entitled,]  we,  in 
confidence  of  your  prudence  and  fidelity,  have  appointed,  and  by 
these  presents  do  appoint,  you  a  commissioner  to  take  the  deposition 
of  said  witness,  and  therefore  we  authorize  and  empower  you,  at 
certain  days  and  places,  to  be  by  you  for  that  purpose  appointed, 
diligently  to  examine  said  witness  in  answer  to  the  interrogatories 
annexed  to  this  commission,  and  upon  his  corporal  oath,  first  taken 
before  you,  which  oath  you  are  hereby  authorized  to  administer,  and 
cause  the  said  examination  of  the  said  witness  to  be  reduced  to 
writing  and  subscribed  by  the  said  witness,  and  then  certified  and 
returned  [the  same  annexed  to  this  commission]  unto  the  clerk  of 
our  court  aforesaid,  with  all  convenient  speed,  enclosed  in  a 

sealed  envelope  directed  to  said  clerk,  and  forwarded  to  him  by 
United  States  mail  or  other  usual  channel  of  conveyance. 

Witness  the  Hon.  ,  the  judge  [s]   of  our  court  of  the 

county  of  ,  and  the  seal  of  said  court,  at  the  city  of  ,  this 

day  of  ,  19     . 

,  Clerk. 
[Seal.]  By  ,  Deputy  Clerk. 

FORM   No.  1147 — Instructions  to  commissioner. 

1.  All  the  commissioners  named  in  the  commission  shall  have 
notice  of  the  time  and  place  of  executing  it;  and  if  any  of  them  do 
not  act,  let  the  fact  that  they  were  notified,  or  could  not  be  notified, 
and  the  reason  for  their  not  acting,  be  stated. 

2.  The  commission  must  be  executed  by  ,  the  commissioner 
[or  commissioners]  named  therein. 

3.  The  acting  commissioner  [s]  will  examine  the  witnesses  sep- 
arately, after  publicly  administering  to  such  the  following  oath  or 
affirmation:  "You  do  solemnly  swear  that  the  evidence  you  shall 
give  in  this  issue,  pending  between  and  ,  shall  be  the 


1844  AFFIDAVITS,  DEPOSITIONS,  ETC.  [Tit.  XVII. 

truth,  the  whole  truth,  and  nothing  but  the  truth;  so  help  you  God." 
[Or,  if  the  witness  shall  declare  that  he  has  conscientious  scruples 
against  taking  an  oath,  or  swearing  in  any  form,  he  shall  be  per- 
mitted to  make  affirmation  according  to  the  following  form:  "You 
do  solemnly  declare  (or  affirm),"  as  above.] 

4.  The  general  style  or  title  of  the  depositions  must  be  drawn  up 
in  the  following  manner: 

"Deposition  of  ,  witness,  produced,  sworn  [or  affirmed],  and 

examined,  the  day  of  ,  19     ,  at  ,  under  and  by  vir- 

tue of  a  commission  issued  out  of  the  court  of  the  county  of 

,  state  of  ,  in  a  certain  cause  therein  depending,  and  at 

issue  between  .  plaintiff,  and  ,  defendant,  as  follows : 

"A.  B.,  of  [insert  his  place  of  residence  and  occupation],  aged 
years  and  upwards,  being  duly  and  publicly  sworn  [or  af- 
firmed] ,  pursuant  to  the  directions  hereto  annexed,  and  examined  on 
the  part  of  the  ,  doth  depose  and  say  as  follows,  viz. : 

"1.  To  the  first  interrogatory  he  saith:  [Insert  the  witness's  an- 
swer.] 

"2.  To  the  second  interrogatory  he  saith:  [Give  witness's  answer; 
and  so  on  throughout,  as  to  the  other  interrogatories.]  " 

If  he  can  not  answer,  let  him  say  he  does  not  know. 

5.  If  there  be  any  cross-interrogatories,  the  witness  will  go  on 
thus:  "First — To  the  first  cross-interrogatory,  he  saith  [giving  an- 
swer, and  so  on  throughout,  as  to  other  cross-interrogatories]." 

6.  When  the  witness  has  finished  his  deposition,  let  him  subscribe 
it.  and  the  acting  commissioner [s]  will  certify  as  follows: 

"Examination  taken,  reduced  to  writing,  and  by  the  witness  sub- 
scribed and  sworn  to,  this  day  of  ,  19     ,  before 

,  Commissioner  [s]." 

7.  If  any  papers  or  exhibits  are  produced  and  proved,  they  must 
be  annexed  to  the  depositions  in  which  they  are  referred  to,  and  be 
subscribed  by  the  witness,  and  be  endorsed  by  the  acting  commis- 
sioner [s]  in  this  manner: 

"At  the  execution  of  a  commission  for  the  examination  of  wit- 
nesses, upon  issues  herein  between  ,  plaintiff,  and  ,  de- 
fendant, this  paper  [describe  the  same]  was  produced  and  shown  to 
[insert  the  witness's  name],  and  by  him  deposed  unto  at  the  time  of 
his  examination  before 

,  Commissioner [s]." 


Ch.  CXXXVIL]  DEPOSITIONS.— FORMS.  1S45 

8.  The  acting  commissioner [s]  will  sign  [his  or  their]  name[s]  to 
each  half-sheet  of  the  depositions  and  exhibits. 

9.  If  an  interpreter  is  employed,  the  commissioner [s]  will  admin- 
ister to  him  the  following  oath  and  certify  thereto  : 

"You  do  solemnly  swear  that  you  will  truly  and  faithfully  inter- 
pret the  oath  and  interrogatories  to  be  administered  to  ,  a 
witness  now  to  be  examined,  out  of  the  English  language  into  the 
language ;  and  that  you  will  truly  and  faithfully  interpret  the 
answers  of  the  said  thereto,  out  of  the  said  language  into 
the  English  language." 

Let  the  deposition  be  subscribed  by  the  interpreter  as  well  as  by 
the  witness,  and  certified  by  the  acting  commissioner [s],  as  follows: 

"Examination  taken,  reduced  to  writing,  subscribed  by  the  wit- 
ness and  by  the  sworn  interpreter,  and  sworn  to  by  the  witness,  this 
day  of  ,  19     ,  before  ,  Commissioner  [s]." 

10.  The  commissioner  [s]  will  make  return  on  the  back  of  the  com- 
mission by  endorsement,  thus: 

"The  execution  of  this  commission  appears  in  certain  schedules 
hereunto  annexed.  ,  Commissioner [s]." 

11.  The  depositions  [and  exhibits,  if  any]  must  be  annexed  to  the 
commission,  and  then  the  commission,  the  directions,,  the  interroga- 
tories, cross-interrogatories,  depositions,  and  exhibits  must  be  folded 
into  a  packet  and  bound  with  tapes.  The  acting  commissioner  [s] 
to  set  [his  or  their]  seal[s]  at  the  several  meetings  or  crossings  of 
the  tape,  endorse  [his  or  their]  name[s]  on  the  outside,  and  direct 
it  thus: 

To  ,  Esq.,  Clerk  of  the  court,  at  ,  state  of 

12.  When  the  commission  is  thus  executed,  made  up,  and  directed, 
it  must  be  returned  in  the  manner  specified  in  the  direction  on  the 
commission,  if  there  be  any. 

13.  If  there  be  no  direction  on  the  commission  specifying  the  man- 
ner in  which  it  is  to  be  returned,  then  it  must  either  be  delivered  to 
the  court  by  ,  the  acting  commissioner  [s],  personally,  or  else 
be  forwarded  by  some  person  coming  to  this  place,  and  who  must  be 
able,  on  his  arrival,  to  make  oath  before  ,  the  judge  [s]  or  the 
clerk  of  the  court,  that  he  received  the  same  from  the  hands  of 
[naming  him  or  them],  the  commissioner [s],  and  that  it  had  not 
been  opened  or  altered  since  he  so  received  it. 

Jury's  PI.— 117. 


J84G  AFFIDAVITS,  DEPOSITIONS,  ETC.  [Tit.  XVI\. 

14.  In  case  of  returning  the  commission  by  mail,  it  is  to  be  depos- 
ited by  ,  the  acting  commissioner [s],  in  the  nearest  post-office, 
[he  or  they]  making  the  following  endorsement  thereon: 

"Deposited  in  the  post-office  at  ,  this  day   of  , 

19     ,  by  [me  or  us].  ,  Commissioner [s]." 

15.  In  case  of  returning  the  commission  by  a  vessel,  it  is  to  be 
deposited  by  ,  acting  commissioner  [s],  in  the  letter-bag  of  such 
vessel,  he  [they]  making  upon  the  commission  the  following  en- 
dorsement : 

"Deposited  in  the  letter-bag  of  the  ,  now  lying  at  , 

and  bound  for  the  port  of  ,  this  day  of  ,  19     ,  by 

[me  or  us].  ,  Commissioner  [s]." 

It  may  also  be  forwarded  by  any  usual  conveyance. 

The  commissioner  [s]  [is  or  are]  requested  to  be  very  careful  to 
observe  the  foregoing  instructions,  as  the  smallest  variance  may 
vitiate  the  execution  of  the  commission. 

[Here  may  be  given  special  or  additional  instructions.] 

FORM   No.  1148 — Deposition  of  witness.  (To  be  annexed  to  the  commission.) 

[Title  of  court  and  cause.] 

Deposition  of  K.  L.,  a  witness  produced  and  examined  this 
day  of  ,  19     ,  under  and  by  virtue  of  a  commission  issued  out 

of  the  court  of  the  state  of  ,  in  the  county  of  .  and 

to  which  this  deposition  is  annexed,  in  the  above-entitled  action  [or 
proceeding],  pending  and  at  issue  therein  between  A.  B.,  the  plaint- 
iff in  said  action,  and  C.  D.,  the  defendant  therein,  [or  between  A. 
B.,  the  petitioner  in  said  proceeding,  and  C.  D.,  the  respondent 
therein,]  as  follows: 

K.  L.,  of  the  [state  his  residence],  aged  years  and  upwards, 

being  duly  sworn  [or  affirmed],  doth  depose  and  say  as  follows: 

1.  To  the  first  direct  interrogatory  [stating  it]  he  saith:  [State 
his  answer.] 

2.  To  the  second  direct  interrogatory  [stating  it]  he  saith:  [State 
his  answer;  and  so  on  as  to  all  the  direct  interrogatories.] 

1.  To  the  first  cross-interrogatory  [stating  it]  he  saith:  [State  his 
answer.] 

2.  To  the  second  cross-interrogatory  [stating  it]  he  saith:  [State 
his  answer ;  and  so  on  as  to  all  the  cross-interrogatories,  and  redirect 
and  ra-cross  interrogatories,  if  any.] 

[Signature  of  witness:]     K.  L. 


Ch.  CXXXVII.]  STIPULATIONS.— FORMS.  1847 

[Certificate  of  commissioner  to  deposition.] 
State  of 


County  of 

I,  E.  F.,  commissioner  under  the  commission  hereto  annexed,  do 
certify,  that  K.  L.,  the  witness,  named  therein,  personally  appeared 
before  me  on  the  day  of  ,  19     ,  at  ,  in  the  county 

of  ,  in  the  state  of  ,  and  being  by  me  duly  sworn,  made 

answer  to  the  several  interrogatories  annexed  to  the  foregoing  com- 
mission, and  did  depose  to  the  matters  contained  in  the  foregoing 
deposition.  And  I  further  certify,  that  when  the  deposition  was 
completed  it  was  carefully  read  to  K.  L.,  said  witness,  and  was  cor- 
rected by  him  in  each  and  every  particular  which  he  desired,  and  it 
was  then  subscribed  by  him ;  and  I  certify  that  the  foregoing  deposi- 
tion is  the  deposition  so  corrected  and  subscribed  by  him.  [And  I 
further  certify,  that  said  witness  endorsed  the  exhibits  numbered 
attached  to  said  deposition.]  And  I  further  certify,  that  I  have  sub- 
scribed my  name  to  each  half-sheet  of  said  deposition  [and  to  each 
exhibit] .  And  I  further  certify,  that  G.  H.,  Esq.,  [or  no  one]  appeared 
in  behalf  of  the  plaintiff  [or  petitioner],  and  I.  J.,  Esq.,  [or  no  one] 
appeared  in  behalf  of  the  defendant  [or  the  respondent,  or  the  con- 
testant]. E.  F.,  Commissioner. 

§486.     STIPULATIONS. 

FORM    No.   1149 — Waiver    of    answer. 

[Title  of  court  and  cause.] 

It  is  hereby  stipulated  by  and  between  the  parties  hereto  that 
formal  answer  be  and. the  same  is  waived  herein,  and  it  is  further 
stipulated  that  the  allegations  of  the  complaint  on  file  herein  may  for 
the  purposes  of  trial  be  deemed  denied. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

C.  D.,  Attorney  for  defendant. 

FORM   No.   1150 — Stipulation  to  transfer  cause  to  another  department. 

[Title  of  court  and  cause.] 

Whereas,  the  above-entitled  action  was  originally  assigned  by  the 

Hon.  ,  presiding  judge  of  said  court,  to  department  No. 

of  said  court ;  and  whereas  the  said  judge  of  said  department 

has  expressed  his  desire,  because  of  his  present  overcrowded  calen- 


1848  AFFIDAVITS,  DEPOSITIONS,  ETC.  [Tit.  XVII. 

dar,  to  have  said  cause  transferred  to  some  other  department  of  this 
court  for  state  any  other  reason  for  the  transfer]  ; 

Wherefore,  the  undersigned  attorneys  for  the  respective  parties 
herein  hereby  stipulate  and  agree  that  said  cause  be  transferred 
from  said  department  No.  ,  and  be  reassigned  by  the  presiding 

judge  of  said  court ;  and  that  all  motions,  demurrers,  and  other  mat- 
ters now  pending  in  said  cause  be  heard  in  the  department  to  which 
the  same  shall  be  so  assigned  hereunder,  and  that  said  cause  be 
determined  therein,  subject  to  such  further  order  or  orders  of  the 
court  as  may  be  made. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

C.  D.,  Attorney  for  defendant. 

FORM    No.  1151 — Stipulation  to  dismiss  appeal. 

[Title  of  court  and  cause.] 

It  is  stipulated  in  the  above-entitled  action,  that  the  appeal  taken 
by  defendants,  ,  to  the  supreme  court  of  the  state  of  , 

from  the  judgment  and  decree  of  the  court  of  the  state  of 

,  in  and  for  the  county  of  ,  made  and  entered  in  said 

court  on  ,  19     ,  in  favor  of  plaintiff  in  said  action,  and 

against  the  appealing  defendants,  is  hereby  dismissed,  and  that  a 
motion  for  an  order  dismissing  said  appeal  may  be  made  and  heard 
in  the  said  supreme  court  at  any  time  without  notice,  upon  presenta- 
tion of  this  stipulation ;  and  that  plaintiff  waives  any  claim  for  costs 
incurred  by  him  upon  such  appeal: 

It  is  further  stipulated,  that  upon  the  making  of  the  order  of  said 
court  dismissing  said  appeal,  the  clerk  of  the  supreme  court  may 
enter  such  dismissal  forthwith,  and  that  a  remittitur  may  issue 
thereon  forthwith,  and  be  sent  to  the  clerk  of  said  court,  and 

that  upon  the  filing  of  said  remittitur  in  the  office  of  the  county 
clerk  of  County,  plaintiff  will  thereupon  file  a  duly  executed 

satisfaction  of  judgment  entered  in  his  favor  in  said  action  for  his 
costs  incurred  in  said  action  in  said  court. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

C.  D.,  Attorney  for  defendants. 

FORM   No.  1152 — Stipulation  as  to  facts. 

(In  County  of  Saguache  v.  Decker,  10  Colo.  149;  14  Pac.  123.) 

[Title  of  court  and  cause.] 

The  parties  hereto  agree  upon  the  following  statement  of  facts, 


Ch.  CXXXVIL]  STIPULATIONS,  ETC.  1849 

and  submit  the  same  to  the  court  for  the  determination  of  the  points 
in  controversy  hereinafter  specified.  The  points  agreed  upon  are  as 
follows:    [Here  follows  statement  of  facts.] 

The  points  in  controvers.y,  and  upon  which  the  decision  of  the  court 
is  asked,  are  as  follows :  The  foregoing  bills  have  been  contracted  by 
a  duly  appointed  and  organized  board  of  health  within  the  county 
of  Saguache,  when  said  board  of  health  was  the  board  of  health  of 
an  incorporated  town.    Is  or  is  not  the  county  liable  therefor? 

[Date.]  [Signatures  of  parties.] 

FORM   No.   1153 — Stipulation  to  restore  and  file  original  complaint  destroyed 
by  fire. 

(In  Athearn  v.  Ryan,  154  Cal.  554;  98  Pac.  390.) 
[Title  of  court  and  cause.] 

It  is  hereby  stipulated  and  agreed,  that  the  foregoing  and  annexed 
copy  of  complaint  is  a  true  and  correct  copy  of  the  original  com- 
plaint filed  in  the  superior  court  of  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  in  the  action  entitled  Charles  H.  Athearn, 
plaintiff,  v.  Annie  Ryan,  defendant,  on  or  about  the  5th  day  of 
October,  1905. 

It  is  also  stipulated  and  agreed,  that  said  copy  of  said  complaint 
be  filed  in  said  court  as  of  the  5th  day  of  October,  1905,  in  the  place 
and  stead  of  said  original,  which  was  destroyed  by  fire  on  or  about 
the  18th  day  of  April,  1906. 

Benjamin  Healey, 

Attorney  for  defendant. 
Garoutte  &  Goodwin, 

Attorneys  for  plaintiff. 

§487.     ANNOTATIONS. 

A  stipulation  by  a  party,  represented  In  the  action  by  an  attorney  of  record,  will 
have  no  effect,  and  will  be  disregarded  by  the  court:  Wylie  v.  Sierra  G.  Co.,  120  Cal. 
485,  487,  52  Pac.  Rep.  809.  See  Board  of  Commissioners  v.  Younger,  29  Cal.  147,  87 
Am.  Dec.  164;  Mott  v.  Foster,  45  Cal.   72. 

Affidavit  as  basis  of  jurisdiction. — The  court's  jurisdiction  over  the  defendant  to 
make  service  by  publication  depends  upon  a  valid  affidavit  filed  as  provided  by  the 
code;  and  where  there  is  no  such  affidavit,  a  decree  based  upon  such  proceedings  is 
a  nullity.  But  the  mere  omission  of  the  officer  attesting  it  to  complete  the  affidavit, 
by  attaching  his  certificate  or  jurat  to  such  paper,  may  be  supplied,  and  the  defect 
remedied,  where  in  fact  the  affiant  had  taken  the  oath,  and  it  is  competent  to  show 
in  such  case  by  parol  that  the  affidavit  for  constructive  service  was  accordingly 
sworn  to  by  the  affiant  before  the  clerk  of  the  court:  Bantley  v.  Finney,  43  Neb. 
794,  62  N.  W.  214. 


1850 


BILL  OF  PARTICULARS.  [Tit.  XVII. 


Error  In  signing.— That  an  oath  or  an  affidavit  does  not  lose  its  vitality  because 
of  the  omission  of  the  clerk  to  certify  or  attach  his  jurat,  see,  also,  Kruse  v.  Wil- 
son, 79  111.  233;  Tallman  v.  Ely,  6  Wis.  244;  Jamison  v.  Weaver,  84  Iowa  611,  51 
N.  W.  65. 

So  it  has  been  held  that  where  a  party  had  made  an  affidavit,  and  had  sworn  to  it 
before  an  officer  authorized  to  administer  oaths,  but  had  not  signed  the  affidavit, 
that  the  action  was  good,  and  that  it  is  not  necessary  to  the  making  of  a  good 
affidavit  that  the  party  making  it  should  actually  sign  it:  Bates  v.  Robinson,  8  Iowa 
318.  See  Harris  v.  Lester,  80  111.  307;  Shelton  v.  Berry,  19  Tex.  154,  70  Am.  Dec.  326; 
Garrard  v.  Hitsman,  16  N.  J.  L.  124.  Compare  Hargadine  v.  Van  Horn,  72  Mo.  370, 
where  a  contrary  doctrine  is  supported  by  a  divided  court. 


CHAPTER  CXXXVIII. 

Inspection  of  Writings  and  Bill  of  Particulars. 

Page 
Form  No.  1154.  Notice  of  motion  for  an  order  for  inspection  of 
a  paper  [or  account,  or  entries],  and  for  a 

copy  thereof  1850 

Form  No.  1155.  Affidavit  for  order  for  inspection  of  account 

[or  of  a  paper],  and  to  take  a  copy  thereof.     1851 
Form  No.  1156.  Demand  to  have  inspection  of  an  original  in- 
strument       1$51 

Form  No.  1157.  Demand  for  a  copy  of  an  account 1852 

Form  No.  1158.  Order  directing  party  to  furnish  bill  of  par- 
ticulars       1852 

§  488.  Annotations 1852 


FORM   No.  1154 — Notice  of  motion  for  an  order  for  inspection  of  a  paper  [or 
account,  or  entries],  and  for  a  copy  thereof. 

[Title  of  court  and  cause.] 

To  A.  B.,  Attorney  for  plaintiff  [or  defendant]  : 

Please  take  notice,  that  the  defendant  [or  plaintiff]  will  move 
said  court  at  the  courtroom,  department  No.  thereof,  on  the 

day  of  ,  19     ,  at  o'clock       M.,  or  as  soon  there- 

after as  counsel  can  be  heard,  for  an  order  requiring  plaintiff  [or 
defendant]  to  give  to  defendant  [or  plaintiff]  inspection  of  a  paper 
[or  accounts,  or  entries]  described  as  follows:  [Here  describe]; 
which  said  paper  [or  accounts,  or  entries]  relates  to  transactions 
mentioned  in  the  complaint  [or  cross-complaint]  in  this  action,  and 
which  contains  evidence  relating  to  the  defense  against  the  com- 
plaint [or  cross-complaint]  herein.  Said  motion  will  be  based  on  the 
complaint  in  this  action,  and  on  the  affidavit  of  ,  a  copy  of 

which  is  annexed  hereto  and  served  herewith,  and  on  the  ground 


Ch.  CXXXVIII.]  MOTION    FOR    INSPECTION.  1851 

that  such  inspection  and  copy  are  necessary  for  the  proper  defense 
of  the  defendant  [or  plaintiff]  to  the  complaint  [or  cross-complaint] 
herein. 

[Date.]  C.  D.,  Attorney  for  defendant. 

FORM    No.   1155 — Affidavit  for  order  for  inspection  of  account  [or  of  a  paper], 
and  to  take  a  copy  thereof. 

[Title  of  court  and  cause.] 

[Venue.] 

,  being  duly  sworn,  says:  That  he  is  the  attorney  for  the 
defendant  [or  plaintiff]  in  this  action;  that  plaintiff  [or  defendant] 
has  in  his  possession  [or  under  his  control]  a  book  [or  document, 
describing  it]  relating  to  the  transactions  alleged  in  the  complaint 
[or  cross-complaint]  in  this  action,  and  which  contains  evidence 
relating  to  the  defense  in  the  action  [or  to  the  defense  against  said 
cross-complaint]  ;  that  request  has  been  made  of  the  plaintiff  [or 
defendant]  to  give  inspection  of  such  entries  in  said  book  [or  of  said 
document]  and  for  permission  to  take  a  copy  thereof,  unless  plaintiff 
[or  defendant]  would  give  him  inspection  and  a  copy  thereof;  that 
plaintiff  [or  defendant]  refused  to  give  or  allow  defendant  [or 
plaintiff]  such  inspection  and  copy,  and  has  refused  to  give  permis- 
sion to  take  such  copy. 

[Signature.] 

[Jurat.] 

[Add,  where  required  by  statute,  affidavit  of  merits.] 

FORM   No.  1156 — Demand  to  have  inspection  of  an  original  instrument. 

[Title  of  court  and  cause.] 

To  A.  B.,  Attorney  for  plaintiff  [or  cross-complainant]  : 

Demand  is  hereby  made  for  an  inspection  of  the  original  paper 
[describing  it],  a  copy  of  which  purports  to  be  contained  [or  is 
annexed  to]  the  complaint  [or  cross-complaint]  in  this  action.  Said 
inspection  is  desired  for  the  purpose  of  controverting  the  genuineness 
and  due  execution  of  said  purported  instrument.  [Or  state  any 
■other  purpose  of  the  inspection.] 

[Date.]  C.  D.,  Attorney  for  defendant  [or  cross-defendant.] 


1852  BILL  OF  PARTICULARS.  [Tit.  XVII. 

FORM   No.  1157 — Demand  for  a  copy  of  an  account. 

[Title  of  court  and  cause.] 

To  A.  B.,  Attorney  for  plaintiff:    The  defendant  in  this  action 
hereby  demands  a  copy  of  the  account  sued  on  herein. 

[Date.]  C.  D.,  Attorney  for  defendant. 

FORM   No.  1158 — Order  directing  party  to  furnish  bill  of  particulars. 

[Title  of  court  and  cause.] 

[After  recitals  as  to  the  papers  filed  upon  which  the  motion  is 
made,  hearing,  etc. :] 

It  is  ordered,  that  the  herein  deliver  to  the  herein,  on 

or  before  the  day  of  ,  19     ,  a  bill  of  particulars  as  to 

.    It  is  further  ordered,  that  on  the  trial  of  this  action  the 
be  precluded  from  giving  any  evidence  respecting  beyond  that 

which  may  be  specified  in  the  bill  of  particulars  above  ordered.    It  is 
further  ordered,  that  the  proceedings  in  this  action  on  the  part  of 

,  be  stayed  until  compliance  with  this  order,  and  that 
days'  further  time  be  given  in  which  to  answer     [or  reply] 

herein,  after  the  delivery  to  him  of  said  bill  of  particulars.     [Or  state 
a  definite  day.]  S.  T.,  Judge. 

Form  of  bill  of  particulars  in  an  action  upon  a  promissory  note:  Bishop  v.  Mc- 
Henry,  4  Kan.  App.  525,  44  Pac.  1016. 

§488.     ANNOTATIONS. — Inspection  of  writings  and  bill  of  particulars. 

1-3.  Purpose  of  bill  of  particulars. 

4.  Demand  for  bill  by  defendant. 

5.  Failure  to  file  upon  demand. — Effect  of. 

6.  Motion  to  make  bill   more  specific. 

7.  Time   to  answer  extended  by  motion. 

8.  Failure  to  deliver  bill  within  statutory  time. — Discretion  of  court. 

1.  The  purpose  of  a  bill  of  particulars  4.  Demand  for  bill  by  defendant. — A 
is  to  apprise  a  party  of  specific  demand  bill  of  particulars  may  be  demanded  by 
of  his  adversary:  Auzerais  v.  Naglee,  the  defendant  if  the  cause  of  the  action 
74  Cal.  60,  64,  15  Pac.  371.  See  Ferry  ig  not  set  out  in  tne  complaint  with 
v.  King  Co.,  2  Wash.  337,  26  Pac.  537,  538.  sufficient    fulness:     Knowles    v.    Sander- 

2.  The  chief  office  of  a  bill  of  particu-  CQck>  10?  Ca,    629j  641>  4Q  pac    1Q47 
lars  is  to  amplify  the  pleading  and  more  g_  Faj|upe    to    fi|e                demand.-Ef- 
minutely    specify    the    claim    or    defense 

set   up.     It  does   not  set   forth   cause   of  v 

action  or  ground  of  defense:    Blackburn  ticulars  after  demand   rendered   it  error 

v.  Washington,  G.  M.  Co.,  19  Wash.  361,  to  receive   evidence  of  any   item   of  ac- 

53  Pac.  369    370.  count:    Scott  v.  Frost,   4  Colo.  App.   557, 

3.  A    bill    of    particulars     makes     the  36   Pac.   910. 

plaintiff's     demand     more     specific,     and  6.   Motion    to    make    bill    more   specific. 

limits  his  proof  to  items  set  out:    Edel-  —As    to   what   extent   a   bill   of   particu- 

man   v.    McDonell,    126    Cal.    210,    213,    58  lars  may  go  into  details,   when  required, 

Pac.   528.  is    largely    a    matter    of    discretion    with 


ch.  cxxxix.] 


ANNOTATIONS,  ETC. 


1853 


the  trial  court.  Such  court  does  not 
abuse  its  discretion  when  it  denies  a 
motion  of  the  defendant  in  which  he 
asks  that  the  plaintiff  be  required  to 
make  items  in  the  bill  of  particulars 
submitted  more  specific  for  the  purpose 
of  furnishing  the  defendants  evidence 
or  the  names  of  witnesses  for  his  de- 
fense: Bellingham  v.  Linck,  53  Wash. 
208,  101  Pac.  8.43,  844,  citing,  as  to  the 
office  of  the  bill  of  particulars,  Black- 
burn v.  Washington  G.  M.  Co.,  19  Wash. 
361,  53  Pac.  369;  Ingram  v.  Wishkah 
Boom  Co.,  35  Wash.  191,  77  Pac.  34; 
and  as  to  the  discretion  of  the  court 
in  denying  motion  to  make  bill  of  par- 
ticulars more  specific,  Ferry  v.  King 
Co.,  2  Wash.  337,  343,  26  Pac.  537; 
Turner  v.  Great  Northern  R.  Co.,  15 
Wash.  213,  217,  46  Pac.  243,  55  Am.  St. 
Rep.    883. 

7.  Time  to  answer  extended  by  motion. 
— Effect  of  filing  a  motion   for  a   bill   of 


particulars  is  ipso  facto  to  extend  the 
time  for  answering:  Pluitimer  v.  Weil, 
15  Wash.  427,  46  Pac.  64S,  649. 

8.  Failure  to  deliver  bill  within  statu- 
tory time. — Discretion  of  the  court. — A 
failure  to  deliver  a  bill  of  particulars 
within  a  statutory  time  does  not  give 
the  defendant  the  absolute  right  to  have 
the  evidence  offered  at  the  trial  re- 
jected. It  is  within  the  discretion  of 
the  court  to  determine  whether  the 
penalty  of  the  statute  should  be  en- 
forced and  the  evidence  excluded;  and 
hence,  where  a  bill  of  particulars  has 
been  furnished  long  prior  to  the  trial, 
though  not  within  the  statutory  five 
days,  it  was  not  error  for  the  court  to 
admit  such  evidence:  McCarthy  v.  Mt. 
Tecarte  L.  &  W.  Co.,  110  Cal.  687,  692, 
43  Pac.  391;  Silva  v.  Bair,  141  Cal.  599, 
601,  75  Pac.  162.  See  Robbins  v.  Butler, 
13  Colo.  496,  22  Pac.  803. 


CHAPTER  CXXXIX. 


Trials,  Witnesses,  and  Proceedings  for  Contempt. 

Page 

489.  Trials 1854 

Form  No.  1159.  Order  for  drawing  trial  jury 1854 

Form  No.  1160.  Venire 1854 

Form  No.  1161.  Notice  of  motion  for  trial  of  special  issues  by 

jury ■ 1855 

Form  No.  1162.  Order  for  trial  of  special  issues  by  jury 1855 

Form  No.  1163.  Minutes  and  certificate  of  drawing  jury 1856 

Form  No.  1164.  Order    consolidating    causes    for    purposes    of 

trial  1857 

Form  No.  1165.  Authorization  to  attorney  to  compromise  pend- 
ing action   1857 

Form  No.  1166.  Verdict 1858 

490.  Witnesses,  and  proceedings  for  contempt 1858 

Form  No.  1167.  Civil  subpoena   1S58 

Form  No.  1168.  Attachment  against  a  witness  for  not  obey- 
ing a  subpoena   1S59 

Form  No.  1169.  Attachment  for  defaulting 1859 

Form  No.  1170.  Affidavit  in  proceedings  for  punishing  a  con- 
tempt of  court.     (Common  form.) 1860 

Form  No.  1171.  Affidavit  in  proceedings  for  contempt. — Action 

at  law  to  prevent  usurpation  of  office 1860 

Form  No.  1172.  Motion  for  warrant  of  arrest  in  proceedings 
for  contempt  in  neglecting  and  refusing  to 
obey  a  judgment 1861 


1854  TRIALS,  WITNESSES,  ETC.  [Tit.  XVII. 

Form  No.  1173.  Order  to  show  cause,  made  on  the  filing  of 

affidavit  charging  contempt   1861 

Form  No.  1174.  Warrant  of  attachment  to  be  issued  in  pro- 
ceedings to  punish  for  a  contempt  of  court.     1861 

Form  No.  1175.  Recitals  and  judgment  for  a  contempt  of  court 

committed  in  the  presence  of  the  court 1861 

Form  No.  1176.  Judgment  in  a  proceeding  for  a  contempt  of 
court  against  a  witness  for  refusing  to  an- 
swer a  relevant  and  material  question 1862 

§  491.  Annotations 1863 


§489.     TRIALS. 

FORM    No.   1159 — Order  for  drawing  trial  jury. 

[Title  of  court  and  cause.] 

In  the  matter  of  drawing  a  trial  jury : 

It  appearing  that  the  business  of  this  court  will  require  the  attend- 
ance of  a  trial  jury  for  the  trial  of  criminal  cases,  and  civil  actions 
in  which  jury  trials  shall  have  been  demanded,  and  no  jury  being  in 
attendance,  it  is  now,  by  the  court,  ordered  that  a  trial  jury  be 
immediately  drawn  and  summoned  to  attend  before  this  court  in 
department  No.  thereof,  on  the  day  of  ,  19     ,  at 

o'clock  M.,  and  that  the  number  so  drawn  be  [here  giving 
the  number]. 

Done  in  open  court,  this  day  of  ,  19     . 

S.  T.,  Superior  Judge. 
[Filing  endorsement.] 

FORM    No.   1160— Venire. 

[Title  of  court  and  caus^.] 

The  people  of  the  state  of  ,  to  the  sheriff  of  the  county  of 

,  greeting: 

You  are  hereby  commanded  to  summon  good  and  lawful 

men  from  the  body  of  the  county,  and  not  from  the  bystanders, 
legally  qualified  citizens  of  said  county,  to  serve  as  [trial]  jurors, 
in  the  superior  court,  and  that  they  be  and  appear  at  the  courtroom 
thereof,  on  ,  the  day  of  ,  19     ,  at  o'clock       M. 

Witness  the  Honorable  the  Judges  of  the  Superior  Court  and  the 
seal  thereof,  this  day  of  ,  19     . 

[Attest:  ,  Clerk. 

[Seal.]  By  ,  Deputy  Clerk. 

[Filing  endorsement  ] 


€h.  CXXXIX.J  SPECIAL  ISSUES.— FORMS.  1855 

FORM    No.   1161 — Notice  of  motion  for  trial  of  special  issues  by  jury. 

[Title  of  court  and  cause.] 

To  A.  B.,  Attorney  for  plaintiff  [or  defendant]  : 

Take  notice,  that  upon  the  pleadings  and  proceedings  in  the  above- 
entitled  action,  and  upon  the  affidavits,  with  copies  of  which  you  are 
herewith  served,  a  motion  will  be  made  at  [stating  time  and  place] 
upon  the  opening  of  the  court,  or  as  soon  thereafter  as  counsel  can 
be  heard,  that  the  special  issues  [or  questions  of  fact  involved]  in  the 
above-entitled  action,  as  said  special  issues  [or  questions  of  fact]  are 
stated  in  schedule  A,  hereto  annexed,  be  submitted  to  a  jury  for 
trial,  and  for  such  or  further  relief  as  to  the  court  may  seem  proper. 

[Date.]  C.  D.,  Attorney  for  defendant  [or  plaintiff]. 

[Statement  of  special  issues.] 

Schedule  A.     [Annexed  to  foregoing  notice.] 

The  following  special  issues  [or  questions  of  fact]  are  proposed 
to  be  submitted  to  a  jury  for  trial  in  the  above-entitled  action,  as 
mentioned  in  the  foregoing  notice,  to  wit : 

1.  Whether  [stating  a  specific  issue  under  the  pleadings]. 

2.  Whether  [etc.]. 

FORM   No.  1162 — Order  for  trial  of  special  issues  by  jury. 

[Title  of  court  and  cause.] 

On  reading  and  filing  the  affidavit  of  ,  attorney  for  the 

plaintiff  [or  defendant]  in  the  above-entitled  action,  showing  that 
this  action  is  at  issue  upon  the  complaint  and  answer  therein,  and 
on  reading  and  filing  a  notice  of  motion  on  the  part  of  the  plaintiff 
[or  defendant]  herein  for  an  issue  or  issues  in  this  cause  to  be  tried 
by  a  jury,  with  proof  of  due  service  of  said  affidavit  and  notice  of 
motion  on  ,  attorney  for  the  defendant  [or  plaintiff],  and  on 

reading  [specify  other  papers  read],  and  after  hearing  [etc.;  or  no 
one  appearing  in  opposition]  : 

It  is  hereby  ordered,  that  the  following  special  issues  of  fact  aris- 
ing upon  the  pleadings  in  this  action  be  tried  by  a  jury  at  the  court, 
in  and  for  the  county  of  ,  to  wit : 

1.  [Stating  the  question  to  be  tried,  e.  g.]  Whether  the  defendant 
executed  the  note  and  mortgage  mentioned  in  the  complaint  in  this 
action. 

2.  [Stating  question  to  be  tried,   e.   g.]      Whether  the  plaintiff 


185G 


TRIALS,  WITNESSES,  ETC. 


[Tit.  XVII. 


executed  the  release  of  the  said  note  and  mortgage,  as  stated  in  the 
answer. 

And  that  the  plaintiff  hold  the  affirmative  upon  the  first  question, 
and  the  defendant  the  affirmative  upon  the  second  question ;  that  the 
issue  between  the  plaintiff  and  the  defendant  be  [stating  issue,  e.  g.] 
whether  the  release  of  the  lands  of  the  said  defendant  from  the  lien 
of  the  mortgage  mentioned  in  the  complaint  of  the  plaintiff  was 
obtained  by  the  defendant  by  duress  and  fraud,  or  either,  as  alleged 
in  the  reply  [or  complaint]  ;  and  that  the  plaintiff  be  considered  as 
holding  the  affirmative  of  the  last-mentioned  issue  upon  the  trial 
thereof. 

[Date.]  S.  T.,  Judge. 


FORM   No.  1163— Minutes  and  certificate  of  drawing  jury. 

[Title  of  court  and  cause.] 

Be  it  remembered,  that,  in  pursuance  of  an  order  made  by  the 
Hon.  ,  judge  of  the  superior  court,  department  No.  , 

in  and  for  the  county  and  state  aforesaid,  on  the  day  of  , 

19  ,  ordering  me  to  draw  from  the  jury-box  containing  the  names 
of  persons  selected  by  the  board  of  supervisors  of  said  county  to 
serve  as  jurors  for  the  year  19     ,  slips  of  paper  containing 

the  names  of  persons  to  form  a  jury  to  serve  until  discharged: 

We  ,  judges  of  the  superior  court,  departments  No.  and 

No.  ,  and  ,  clerk  of  said  court,  and  ,  sheriff  of  said 

county,  did,  in  open  court,  on  ,  the  day  of  ,  19     ,  at  the 

hour  of  o'clock       M.  of  said  day,  after  duly  shaking  the  jury- 

box,  and  in  the  presence  of  the  court,  draw  therefrom  slips  of 

paper  containing  the  names  of  the  following  persons  written  thereon 
to  serve  as  said  jury,  to  wit : 


No. 


Number 
of  Ballot. 


Name. 


Residence. 


Occupation. 


[Following  with  the  names,  etc.,  of  as  many  as  may  be  drawn.] 

The  people  of  the  state  of  to  ,  greeting : 

You  are  hereby  commanded  to  summon  the  above-named  citizens 
of  said  county  to  serve  as  jurors  in  the  superior  court, 


Ch.  CXXX1X.]  CONSOLIDATING  CAUSES,  ETC.— FORMS.  1857 

department  No.  ,  and  that  they  be  and  appear  at  the  court- 

room thereof  on        ,  the  day  of  ,19     ,  at  o'clock     M. 

In  witness  whereof,  we  have  hereunto  set  our  hands,  this  day 

of  ,  19     . 

S.  T.,  Judge  of  Superior  Court. 
[Seal.]  ,  County  Clerk. 

By  ,  Deputy  Clerk. 

[Filing  endorsement.] 

FORM   No.  1164 — Order  consolidating  causes  for  purposes  of  trial. 

(In  Scheerer  &  Co.  v.  Deming,  154  Cal.  138;  97  Pac.  155.) 

[Title  of  court  and  consolidated  causes.] 

Upon  the  stipulation  on  file  in  this  case,  and  upon  the  motion  of 
R.  L.  Horton,  attorney  for  defendant  Allen  D.  Butt,  and  good  cause 
appearing  therefor: 

It  is  hereby  ordered,  that  the  following  cases  be  and  the  same  are 
hereby  consolidated  and  transferred  to  department  No.  3  of  said 
court,  for  the  purpose  of  trial,  and  that  all  of  said  causes  shall  be 
heard  and  tried  together,  upon  the  date  that  the  first  of  either  of 
said  causes  shall  be  set  for  trial,  to  wit:  [Here  follow  titles  and 
numbers  of  cases  included  in  the  order.] 

Dated  June  17,  1905.  Waldo  M.  York, 

Judge  of  Superior  Court. 

FORM   No.  1165 — Authorization  to  attorney  to  compromise  pending  action. 

Know  all  men  by  these  presents,  that  I,  A.  B.,  of  , 

state  of  ,  the  party  of  the  first  part,  have  made,  constituted, 

and  appointed,  and  by  these  presents  do  make,  constitute,  and 
appoint,  E.  F.,  party  of  the  second  part  hereto,  my  true  and  lawful 
attorney,  for  me  and  in  my  name,  place,  and  stead,  to  agree  upon, 
consummate,  compromise,  and  settle  that  certain  action  now  pending 
in  the  court  of  ,   county   of  ,   state   of  , 

No.  ,  and  entitled  A.  B.,  plaintiff,  v.  C.  D.,  defendant;  and  I 

hereby  authorize  the  party  of  the  second  part,  as  my  said  attorney, 
to  receive  and  receipt  for  any  and  all  amounts  in  my  name,  place, 
and  stead,  upon  any  compromise  or  settlement  of  said  action  which 
may  be  agreed  upon  by  my  said  attorney  and  the  defendant,  and  to 
execute  all  acquittances,  receipts,  and  releases  to  a  complete  settle- 
ment of  said  action,  and  upon  settlement  thereof  to  dismiss  the  same 


jg58  TRIALS,  WITNESSES,  ETC.  [Tit.  XVII. 

or  any  other  action  for  the  same  cause  which  in  his  judgment  may 
be  deemed  necessary  or  expedient  to  be  brought  for  the  settlement 
and  adjustment  of  the  demand  made  therein. 

Giving  and  granting  unto  my  said  attorney  the  authority  to  do 
any  and  all  of  said  acts  as  effectually  as  I  might  do  if  personally 
present,  hereby  confirming  all  acts  hereunder  done  and  performed 
or  to  be  done  and  performed  in  the  premises. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name,  this 
day  of  ,  19     .  A.  B. 

"Witnesses: 

[Or  acknowledgment,  as  required.] 

FORM    No.  1166— Verdict. 

(From  the  record  in  Schneider  v.  Railway  Co.,  134  Cal.  482 ;  66  Pac. 

734.) 

[Title  of  court  and  cause.] 
In  open  court,  April  12,  1900. 

We,  the  jury  in  the  above-entitled  case,  find  a  verdict  in  favor  of 
the  plaintiff  in  the  sum  of  $5,000. 

,  Charles  C.  Levey,  Foreman. 

[Endorsement  of  filing.] 

§490.     WITNESSES,  AND  PROCEEDINGS  FOR  CONTEMPT. 
FORM    No.  1167 — Civil   subpoena. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  send  greeting  to  : 

We  command  you,  that,  all  and  singular  business  and  excuses 
being  set  aside,  you  appear  and  attend  the  superior  court  of  the 
county  of  ,  state  of  ,  at  a  session  of  said  court,  to 

be  held  at  the  courthouse  in  the  city  of  ,  on  ,  the 

day  of  ,  19     ,  at  o'clock        M.,  then  and  there  to  testify 

in  a  certain  case  now  pending  in  said  court,  then  and 

there  to  be  tried,  between  plaintiff  and  defendant,  on  the  part  of 
the  plaintiff  [or  defendant,  as  the  case  may  be]. 

And  for  a  failure  to  attend  you  will  be  deemed  guilty  of  a  con- 
tempt of  court,  and  liable  to  pay  all  loss  and  damages  sustained 
thereby  to  the  party  aggrieved. 

Given  under  my  hand,  this  day  of  ,  19     . 

[Seal.]  ,  County  Clerk. 

By  ,  Deputy  Clerk. 


Ch.  CXXXIX.]         ATTACHMENT  FOR  DEFAULTING.— FORMS.  1859 

FORM   No.  1168 — Attachment  against  a  witness  for  not  obeying  a  subpoena. 

The  people  of  the  state  of  ,  to  the  sheriff  of  the  county 

of  : 

We  command  you  to  attach  ,  and  bring  him  forthwith 

[or  on  the  day  of  ,  19     ,]  personally  before  our  court 

[or,  if  on  a  certain  term,  naming  it],  held  in  and  for  our  county  of 
[or  before  ,  referee  in  the  action  hereafter  mentioned], 

at  ,  to  answer  to  us  for  certain  contempts  against  us,  in  not 

obeying  our  writ  of  subpoena,  commanding  him  to  appear  on  the 
day  of  ,  19     ,  before  the  said  court  [or  other  court,  or 

referee],  to  testify  in  an  action  there  to  be  tried  between  , 

plaintiff,  and  ,  defendant ;  and  you  are  further  commanded 

to  detain  said  in  your  custody  until  he  shall  be  discharged 

by  our  said  court  [or  by  said  referee].    And  have  you  then  and  there 
this  writ. 

Witness  the  Hon.  ,  justice  [or  judge]  of  said  court,  at 

,  on  the  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

[Endorsed:]     Allowed  this  day  of  ,  19     . 

S.  T.,  Justice  [or  Judge]  of  Court. 

FORM   No.  1169 — Attachment  for  defaulting. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  ,  to  the  sheriff  of  the  county 

of  ,  greeting: 

You  are  hereby  commanded  forthwith  to  attach  the  body  of  f 

and  bring  him  before  the  superior  court,  to  answer  for  a  contempt  of 
said  court,  in  failing  to  appear  as  in  the  above-entitled 

cause,  as  per  mandate  of  this  court. 

Witness  the  Hon.  ,  judge  of  the  said  superior  court,  this 

day  of  ,  19     . 

,  County  Clerk. 

[Seal.]  By  ,  Deputy  Clerk. 


X860  TRIALS,   WITNESSES,   ETC.  [Tit.  XVII. 

FORM   No,  1170 — Affidavit  in  proceedings  for  punishing  a  contempt  of  court. 
(Common  form.) 

[Title  of  court  and  cause.] 

[Venue.] 

A.  B.,  being  dvly  sworn,  says :  That  on  the  day  of  ,  19     , 

a  judgment  of  a  perpetual  injunction  [or  other  restraining  judgment 
or  order]  was  rendered  and  entered  against  C.  D.  in  an  action  in  the 
courl  of  the  state  of  ,  in  the  county  of  , 

m  which  this  affiant,  A.  B.,  is  plaintiff,  and  the  said  C.  D.  is  defend- 
ant; that  said  injunction  [or  order],  among  other  things,  enjoined 
said  C.  D.,  the  defendant  in  that  action,  from  [stating  the  acts  which 
said  injunction  enjoined  said  C.  D.  from  doing]  ;  that  a  copy  of  said 
injunction,  certified  to  by  the  clerk  of  said  court,  was  served  on  said 
C.  D.  at  tbe  county  of  ,  in  the  state  of  ,  on  the 

day  of  ,  19     ,  and  he  then  had,  and  ever  since  has  had,  knowl- 

edge anA  notice  of  said  injunction ;  that  said  judgment  has  not  been 
applied  from,  reversed,  or  set  aside,  and  is  in  full  force  and  effect ; 
that  after  said  service,  to  wit,  on  the  day  of  ,  19     ,  said 

0.  D.  did  [stating  the  acts  constituting  the  contempt],  in  disobedi- 
ence to  the  commands  of  said  injunction,  and  therefore  this  affiant 
•marges  said  C.  D.  with  a  contempt  of  this  court. 

[Affiant's  signature.] 

[Jurat.] 

FORM   No.  1171 — Affidavit    in    proceedings  for   contempt.— Action    at    law  to 
prevent  usurpation  of  office. 

(In  State  ex  rel.  Mahoney  v.  McKinnon,  8  Ore.  487.) x 
State  of  Oregon, 


ss 
County  of  Douglass.  J 

I,  William  R.  Willis,  being  duly  sworn,  say :    I  am  an  attorney  for 

plaintiff  above-named;  that  plaintiff  did,  on  the  25th  day  of  June, 

1879  recover  judgment  in  the  above-entitled  court  and  cause  against 

the  defendants,  J.  H.  Shupe  and  E.  J.  Page ;  that  [thereby]  they  were 

[adjudged]  guilty  of  usurping  and  unlawfully  exercising  the  office  of 

trustees  of  the  city  of  Oakland,  and  [it  was  therein  further  ordered] 

that  they  be  excluded  therefrom .     *     *     *     that  the  said  defendants 

i  The  affidavit  and  the  motion  set  forth  in  forms  Nos.  1171  and  1172  were  held 
sufficient  as  a  basis  for  an  order  to  the  defendants  to  show  cause.  It  is  not  im- 
proper for  the  attorney  to  make  the  affidavit  upon  which  the  proceedings  for 
contempt  may  be  instituted  where  the  statute  provides  that  any  person  having 
knowledge  of  the  facts  is  competent  to  make  such  affidavit:  State  ex  rel.  Mahoney 
v.  McKinnon,  8  Ore.  487,  491,  citing  section  643  of  the  Oregon  Civil  Code. 


Ch  CXXXIX.]  PROCEEDINGS   FOR   CONTEMPT— FORMS.  JStJl 

[and  each  of  them],  in  disobedience  of  said  lawful,  judgment,  continue 
to  and  do  now  usurp  and  exercise  the  office  of  trustees  of  said  city  of 
Oakland,  refusing  and  neglecting  obedience  to  said  judgment. 1 
r  Jurat  1  William  R.  Willis. 

FORM    No.   1172 — Motion  for  warrant  of  arrest   in   proceedings  for  contempt 
in  negJecting  and  refusing  to  obey  a  judgment. 

(In  State  ex  rel.  Mahoney  v.  McKinnon,  8  Ore.  487.) 
[Title  of  court  and  cause.] 

Now  comes  the  plaintiff  above  named,  and  moves  the  Hon.  H.  F. 
Watson,  judge  of  the  above-entitled  court,  upon  the  foregoing  affi- 
davit, for  a  warrant  of  arrest  against  the  said  defendants,  E.  J.  Page 
and  J.  H.  Shupe,  to  answer  for  contempt  in  neglecting  and  refusing 
to  obey  the  judgment  described  in  said  affidavit. 

William  R.  Willis,  Plaintiff's  attorney. 

FORM   No.  1173 — Order  to  show  cause,  made  on  the  filing  of  affidavit  charg- 
ing contempt. 

[Title  of  court  and  cause.] 

Upon  reading  and  filing  the  affidavit  of  A.  B.,  charging  and  show- 
ing that  C.  D.  has  disobeyed  the  commands  of  a  judgment  of  injunc- 
tion [or  other  restraining  judgment  or  order]  rendered  and  entered 
in  the  court  of  the  state  of  ,  in  an  action  therein  in 

which  said  A.  B.  is  plaintiff  and  said  C.  D.  is  defendant  : 

It  is  ordered,  that  the  said  C.  D.,  show  cause  before  said  court  at 
the  courtroom  thereof,  on  [stating  the  time],  why  he  should  not  be 
punished  for  a  contempt  of  said  court  for  such  disobedience.  It  is 
further  ordered,  that  this  order  be  served  on  said  C.  D.  by  delivering 
to  him  personally  a  certified  copy  thereof,  with  a  copy  of  said 
affidavit  of  A.  B.  thereto  attached,  at  least  days  before  the 

date  of  the  hearing  of  said  order  to  show  cause. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1174 — Warrant  of  attachment  to  be  Issued  in  proceedings  to  pun- 
ish for  a  contempt  of  court. 

[Title  of  court  and  cause.] 

It  appearing  from  the  affidavit  of  A.  B.,  filed  on  the  day  ol 

,  19     ,  that  C.  D.  has  disobeyed  the  commands  of  the  injunc- 
tion [or  order]  in  the  judgment  rendered  and  entered  on  the 

i  This  last  averment  in  the  original  was  upon  information  and  belief. 
Jury's  PI.— 118. 


1362  TRIALS,   WITNESSES,   ETC.  [Tit.  XVIL 

day  of  ,  19    .,  in  an  action  in  said  court  of  the  state  of 

,  in  the  county  of  ,  in  which  said  A.  B.  is  plaintiff 

and  said  C.  D.  is  defendant,  and  that  said  C.  D.  was  personally 
served  with  a  copy  of  said  judgment  and  injunction  [or  order]  on 
the  day  of  ,  19     ,  and  that  said  C.  D..  after  he  was  so 

served  with  said  copy,  and  knew  of  said  judgment  and  injunction 
[or  order],  wilfully  disobeyed  the  commands  of  said  injunction  [or 
order] ,  and  is  thereby  guilty  of  a  contempt  of  the  court : 

Now,  therefore,  it  is  ordered,  that  a  warrant  of  attachment  be 
issued  to  bring  said  C.  D.  before  this  court  on  [stating  the  time], 
then  and  there  to  answer  the  charge  of  contempt  contained  in  said 
affidavit.  And  it  is  further  ordered,  that  a  copy  of  said  affidavit  be 
served  on  said  C.  D.  at  the  time  he  is  arrested  under  such  warrant 
of  attachment. 

[Date.]  S.  T.,  Judge. 

FORM  No.  1175 — Recitals  and  judgment  for  a  contempt  of  court  committed 
In  the  presence  of  the  court. 

[Title  of  court  and  cause.] 

Whereas,  during  the  trial  of  the  above-entitled  action  in  this 
court,  before  a  jury,  A.  B.,  Esq.,  was  attorney  for  the  plaintiff,  and 
C.  D.,  Esq.,  was  attorney  for  the  defendant,  and  during  the  progress, 
of  the  trial  of  said  action  the  said  A.  B.,  who  was  the  attorney  for 
plaintiff,  on  the  day  of  ,  19     ,  in  the  presence  of  the 

court,  and  in  the  presence  of  the  jury  before  whom  said  action  was 
being  tried,  struck  said  C.  D.  a  violent  blow  with  a  cane  [or  state 
the  fact  as  it  may  be]  ;  and  whereas,  said  misconduct  on  the  part  of 
said  A.  B.  tended  to  and  did  interrupt  the  due  course  of  said  trial : 

Wherefore,  the  court  finds  that  said  A.  B.  is  guilty  of  a  contempt 
of  this  court;  and  it  is  adjudged  that  he  be  punished  for  such  con- 
tempt by  a  fine  of  $  [or  state  any  other  penalty  imposed]. 

Done  in  open  court,  this  day  of  ,  19     . 

S.  T.,  Judge. 

FORM  No.  1176— Judgment  in  a  proceeding  for  a  contempt  of  court  against 
a  witness  for  refusing  to  answer  a  relevant  and  material 
question. 

[Title  of  court  and  cause.] 

It  appearing  to  the  court,  that  in  the  above-entitled  action,  while 
the  same  was  regularly  on  for  trial  in  this  court,  at  the  courtroom 


Ch.  CXXXIX.]  ANNOTATIONS,    ETC.  1863 

thereof,  on  the  day  of  ,  19     ,  one  F.  G.  was  duly  sworn 

as  a  witness,  and  was  being  examined  as  a  witness;  that  A.  B.,  the 
attorney  for  the  plaintiff  in  the  action,  asked  said  F.  G.,  as  such 
witness  in  the  action,  this  question:  [State  the  question]  ;  that  such 
question  was  and  is  material  and  relevant  under  the  issues  in  the 
action;  that  said  F.  G.,  said  witness,  thereupon  declined  to  answer 
said  question,  notwithstanding  he  was  then  and  there  ordered  by 
the  court  to  answer  the  same;  that  said  F.  G.  thereupon  refused,  and 
still  refuses,  to  answer  said  question : 

Wherefore,  the  court  finds  that  because  thereof  said  F.  G.  is  guilty 
of  a  contempt  of  this  court;  and  it  is  adjudged  that  the  said  F.  G. 
be  punished  for  such  contempt  by  imprisonment  in  the  county  jail 
of  the  county  of  ,  in  this  state,  until  he  consents  to  answer 

such  question. 

Done  in  open  court,  this  day  of  ,  19     . 

S.  T.,  Judge. 

§491.     ANNOTATIONS. — Trials,  witnesses,  and  proceedings  for  contempt. 

1.  Trials. — Admissions   in   pleadings. 

2.  Unnecessary  averments  need  not  be  proved. 

3.  Objections  on  motion  stated  in  the  conjunctive. 

4.  Abstract   instruction. — When   prejudicial. 

5.  Rule  as  to  abstract  instruction  not  an  inflexible  one. 

6.  Erroneous  instruction. — When  not  prejudicial. 

7.  Not  error  to  refuse  incorrect  charge. 

8.  Repetitions  in  charges  properly  refused. 

9.  Plea  in  abatement  amounting  to  general  denial. — Trial. 
10,  11.  Exceptions. 

12.  Repetition  of  exceptions  upon  trial. 

13.  Matters  of  record  properly  have  no  place  in  a  bill  of  exceptions. 

14.  Discretionary  authority  of  courts  of  equity  to  consolidate  causes. 

15.  Effect  of  consolidation. 

16.  Effect  as  to  issues  and  pleadings. 

17.  Single  or  separate  judgments. — Reference. 

18.  Witnesses  and   contempts. — Statutes  applicable  to  proceedings. 

19.  Jurisdiction   to   punish  for  contempt. 
20,  21.  Judges   at   chambers. 

22,  23.  Proceeding   in   vacation. 
24-26.  United  States  commissioner. 

27.  Disobedience  by  judge  of  writs  of  supersedeas  of  higher  court. 

28.  Application  to  punish  for  contempt. 

29.  State  as  party. 

30.  Affidavit,   where  required,   is  jurisdictional. 
31,  32.  Affidavit    upon    information    and    belief. 

33.  Omission  cured  by  answer. 
34-36.  Judgment  must  specify   the  contempt. 

37.  Refusing  to  answer  question. — Recital  in  commitment 
38,  39.  Defenses. 

40.  Appealability  of   order. 

1.  TRIALS.— Admissions    In    pleadings.       are   not   required  to   be   proved   as   facts 
—Admissions  contained  in  the  pleadings       in    the    case.      The    pleadings    in    a   case 


1864 


TRIALS,   WITNESSES,   ETC. 


[Tit.  XVII. 


are  before  the  court,  and  constitute  a 
part  of  the  proceedings  without  being 
introduced  in  evidence:  Knowles  v. 
New  Sweden  I.  Dist.,  16  Idaho  217,  101 
Pac.  81,  85;  Bloomingdale  v.  DuRell,  1 
Idaho  33;  East  Tennessee  etc.  Co.  v. 
Kane,  92  Gft.  187,  18  S.  E.  18,  22  L.  R. 
A.   315. 

2.  Unnecessary  averments  need  not 
be  proved:  Luttermann  v.  Romey 
(Iowa),  121  N.  W.  1040,  1041,  citing 
Iowa  code  §3639;  Knapp  v.  Cowell,  77 
Iowa  528,   42  N.  W.   434. 

3.  Objections  on  motion  stated  in  the 
conjunctive. — On  a  motion  to  strike  out 
evidence  on  several  grounds  stated  in 
the  conjunctive,  it  is  not  the  law  that 
the  motion  must  be  denied  unless  all 
the  objections  are  well  based:  United 
States  Oil  etc.  Co.  v.  Bell,  153  Cal.  781, 
788,  96  Pac.  901  (to  quiet  title,  and 
cross-complaint  to  rescind  and  annul 
deed). 

4.  Abstract  instruction. — When  preju- 
dicial.— It  is  prejudicial  error  to  give  an 
abstract  instruction  which  might  be 
construed  as  an  intimation  from  the 
court  that  there  was  some  evidence  on 
that  issue  when  there  was  in  fact  none: 
C.  H.  Smith  etc.  Co.  v.  Weatherford 
(Ark.),  121  S.  W.  943,  945;  St.  Louis  etc. 
R.  Co.  V.  Townsend,  69  Ark.  380,  63  S. 
W.  994;  St.  Louis  etc.  R.  Co.  v.  Wood- 
ward, 70  Ark.  441,  69  S.  W.  5;  Harris 
L.  Co.  v.  Morris,  80  Ark.  260,  96  S.  W. 
1067;  Fordyce  v.  Key,  74  Ark.  19,  84 
S.  W.  797;  Arkansas  etc.  R.  Co.  v. 
Stroude,  77  Ark.  109,  91  S.  W.  18,  113 
Am.    St.   Rep.   130. 

5.  Rule  as  to  abstract  instruction  not 
an  inflexible  one.— The  rule  that  the 
court  should  not  instruct  in  such  a  man- 
ner as  to  intimate  that  there  is  evi- 
dence upon  some  issue  where  no  evi- 
dence exists  is  not  an  inflexible  one; 
for  example,  where  it  can  be  seen  that  no 
prejudice  could  have  resulted  from  the 
giving  of  such  an  instruction,  the  ver- 
dict will  not  be  set  aside:  C.  H.  Smith 
etc.  Co.  v.  Weatherford  (Ark.),  121  S. 
W.  943,  946;  Miller  v.  Nuckolls,  77  Ark. 
64,  91  S.  W.  759,  4  L.  R.  A.  (N.  S.)  149, 
113  Am.  St.  Rep.  122,  7  Am.  &  Eng. 
Ann.  Cas.  110;  Jonesboro  etc.  R.  Co.  v. 
Cable,   89  Ark.   518,   117   S.  W.   550. 

6.  Erroneous  instruction. — When  not 
prejudicial.— The  appellant  can  not  com- 
plain of  an  error  in  instructions  asked 
by  his  opponent  if  the  same  error  was 
repeated  in  instructions  asked  by  him- 


self: Chicago  R.  I.  &  P.  Co.  v.  Smith 
(Ark.),  127  S.  W.  71fc  717,  citing  St. 
Louis  etc.  R.  Co.  v.  Carter,  126  S.  W. 
9"9,   and  other  cases. 

7.  Not  error  to  refuse  incorrect  charge. 
— A  charge  to  the  jury  should  be  cor- 
rect in  every  particular;  otherwise,  a 
party  can  not  complain  of  a  refusal  to 
give  it:  C.  H.  Smith  etc.  Co.  v.  Weath- 
erford  (Ark.),  121  S.  W.  943,  946. 

8.  Repetitions  in  charges  properly  re- 
fused.— A  charge  to  the  jury  which  is  a 
repetition  in  substance  of  other  charges 
given  may  be  properly  refused:  St.  Louis 
etc.  R.  Co.  v.  Wilcox  (Tex.  Civ.  App.), 
121  S.  W.  588,  590;  McCray  v.  Galveston 
etc.  R.  Co.,  89  Tex.  168,  34  S.  W.  95. 

9.  Plea  in  abatement  amounting  to 
general  denial. — Trial. — Matters  set  up 
in  a  so-called  "plea  in  abatement"  which 
amount  to  nothing  more  than  a  general 
denial  do  not  warrant  a  trial  of  such 
matters  separate  and  apart  from  the 
trial  on  the  merits:  Union  Loan  etc.  Co. 
v.  Farbestein  (Mo.  App.),  127  S.  W.  656, 
659. 

10.  Exceptions. — The  object  of  a  bill 
of  exceptions  is  to  make  that  a  part  of 
the  record  which  is  not  already  a  part  of 
it:  Ewing  v.  Vernon  County,  216  Mo. 
681,  116  S.  W.  51S,  519. 

11.  Under  section  647  of  the  Code  of 
Civil  Procedure  of  California,  an  excep- 
tion is  allowed  without  especially  reserv- 
ing the  same,  among  other  things,  from 
"an  order  or  decision  from  which  an  ap- 
peal may  be  taken,"  etc.  Under  section 
939  of  the  same  code,  an  appeal  may  be 
taken,  among  other  things,  from  "an  order 
granting  or  refusing  a  new  trial."  Hence, 
where  the  law,  as  in  California,  allows 
an  exception  to  a  ruling  upon  a  motion 
for  a  new  trial,  it  is  not  necessary  to 
especially  reserve  the  exception  inas- 
much as  the  order  is  deemed  excepted  to. 

12.  Repetition  of  exceptions  upon  the 
trial. — When  upon  the  first  appearance 
of  improper  testimony  the  counsel  raises 
his  objection,  and  the  same  is  overruled, 
he  is  not  required  to  continually  inter- 
pose a  like  objection  to  all  similar  testi- 
mony: McKee  v.  Rudd,  222  Mo.  344,  121 
S.  W.  312,  320,  133  Am.  St.  Rep.  529- 

13.  Matters  of  record  properly  have  no 
place  in  a  bill  of  exceptions,  and  such 
recitals  therein  add  nothing  to  the  valid- 
ity of  the  bill:  Flanagan  Mill.  Co.  v. 
City  of  St.  Louis,  222  Mo.  306,  121  S.  W. 
112;  Hogan  v.  Hinchey,  195  Mo.  527,  533, 
94  S.  W.  522;  Harding  v.  Bedoll,  202  Mo 


Ch.  CXXXIX  ] 


ANNOTATIONS. 


1865 


625,  100  S.  W.  638;  Groves  v.  Terry,  219 
Mo.  595,  117  S.  W.  1167;  Shemwell  v. 
McKinney,  214  Mo.  692;  114  S.  W.  1083; 
Stark  v.  Zehnder,  204  Mo.  442,  102  S.  W. 
992;  Walser  v.  Wear,  128  Mo.  652,  31 
S.  W.  37;  Pennowfsky  v.  Coerver,  205 
Mo.  135,  103  S.  W.  542;  Coleman  v.  Rob- 
erts, 214  Mo.  634,  114  S.  W.  39;  Southern 
Missouri  etc.  R.  Co.  v.  Wyatt,  223  Mo. 
347,   122  S.  W.  688,  689. 

14.  Discretionary  authority  of  courts  of 
equity  to  consolidate  causes. — Courts  of 
equity  are  vested  with  discretionary 
powers  to  consolidate  causes,  and  such 
discretion  will  not  be  reviewed  on  appeal 
except  for  abuse:  Hay  ward  v.  Mason, 
54  Wash.  649,  104  Pac.  141,  142.  See 
Peterson  v.  Dillon,  27  Wash.  78,  67 
Pac.  397. 

15.  Effect  of  consolidation.— Under  the 
statute,  a  consolidation  of  actions 
merges  all  the  actions  into  one  suit. 
There  may  be  many  causes  of  action, 
but  the  effect  is  to  join  them  all  in  one 
suit.  There  can  be  therefore  but  one 
judgment  in  a  consolidated  suit,  and 
this  judgment  must  settle  all  the  issues 
involved.  Where  an  order  to  consoli- 
date is  made,  the  court  should  require 
the  pleadings  to  be  reconstructed  as  in 
one  suit,  if  necessary,  and  should  deter- 
mine what  costs,  if  any,  should  be 
charged  to  each  party  in  the  original 
suits.  If  the  pleadings  are  ordered 
reformed,  the  complaint  in  the  consoli- 
dated suit  should  state  all  of  the  plaint- 
iff's cause  of  action  against  the  defend- 
ants in  each  of  the  suits  consolidated, 
and  the  answer  of  the  defendants  should 
present  all  issues  raised  in  the  original 
suits.  The  complaint  in  the  consoli- 
dated suit  should  be  the  same  as  if  the 
plaintiff  had  joined  all  causes  of  action 
alleged  in  the  original  suits  in  one 
action:  Handley  v.  Sprinkle,  31  Mont. 
57,  77  Pac.  296,  3  Am.  and  Eng.  Ann. 
Cas.    531. 

16.  Effect  as  to  issues  and  pleadings. 
— Consolidation  of  causes  for  the  pur- 
poses of  trial  does  not  change  the  issues 
in  the  respective  cases,  nor  render  the 
admissions  of  the  pleadings  ineffectual 
when  applied  to  the  particular  case  in 
which  such  admissions  are  made:  Los 
Angeles  Pressed  Brick  Co.  v.  Higgins, 
8  Cal.  App.  514,  97  Pac.  414,  420. 

17.  Single  or  separate  Judgments. — 
Reference. — As  to  when  there  should  be 
single  or  separate  judgments  on  con- 
solidation  of  causes,    see   note   to  Hand- 


ley    v.    Sprinkle,    31    Mont.    57,    77    Pac. 
296,  3  Am.   and  Eng.   Ann.   Cas.   534. 

18.  WITNESSES  AND  CONTEMPTS. 
— Statutes  applicable  to  proceedings. — 
Civil  statutes  rather  than  criminal  stat- 
utes relating  to  new  trials  apply  to  con- 
tempt proceedings:  State  v.  Stevenson, 
104   Iowa  50,   73   N.   W.   360. 

19.  Jurisdiction  to  punish  for  contempt 
may  be  concurrent  with  or  independent 
of  the  power  of  the  courts  to  punish  the 
act  as  an  indictable  offense:  Fisher  v. 
McDaniel,  9  Wyo.  457,  64  Pac.  1056,  87 
Am.   St.   Rep.   971. 

20.  Judges  at  chambers  may  not,  un- 
der the  Kansas  statute  (Laws  1897,  ch. 
106),  punish  for  contempt.  Orders  must 
be  made  by  the  court:  In  re  Barnhouse, 
60  Kan.   849,   58  Pac.   4S0. 

21.  Under  some  jurisdictions,  the 
judge  at  chambers  in  vacation  is  vested 
with  power,  under  certain  circum- 
stances, to  punish  for  contempt:  State 
v.   Loud,   24   Mont.   428,   62  Pac.   497. 

22.  A  proceeding  in  vacation  adjudg- 
ing a  contempt  is  void  under  the  Texas 
practice:  Ex  parte  Ellis,  37  Tex.  Cr. 
Rep.  539,  40  S.  W.  275,  66  Am.  St. 
Rep.   831. 

23.  The  power  to  punish  for  con- 
tempt is,  under  the  statute,  generally 
restricted  to  the  court  in  which  the  con- 
tempt arose:  Nebraska  Children's  H. 
Soc.  v.  State,  57  Neb.  765,  78  N.  W.  267. 

24.  The  United  States  commissioner  is 
an  officer  of  the  federal  court  which 
appoints  him,  and  the  power  to  punish 
for  contempts  before  such  commissioner 
therefore  resides  in  the  court,  and  not 
in  the  commissioner:  United  States  v. 
Beavers,    125   Fed.   778. 

25.  The  district  court  may  punish  for 
contempt  upon  its  commissioner's  find- 
ings: Mau  V.  Stoner,  12  Wyo.  478,  76 
Pac.   584. 

26.  A  writ  of  prohibition  will  lie  to 
prevent  an  arrest  for  contempt  by  a 
commissioner  of  the  supreme  court: 
People  v.  Carrington,  5  Utah  531,  17 
Pac.    735. 

27.  Disobedience  by  judge  of  writs  of 
supersedeas  of  higher  court. — Where  a 
judge  of  a  district  court  for  one  of  the 
districts  of  Alaska  wrote  letters  and 
committed  wilful  and  overt  acts  which 
had  the  direct  effect  of  interfering  with 
and  obstructing  the  effectual  execution 
of  writs  of  supersedeas  on  appeal  issued 
by  the  circuit  court  of  appeals,  and 
directed    to    such    district    judge    and    to 


1866 


TRIALS,   WITNESSES,    ETC. 


[Tit.  XVIL 


the  court  over  which  he  presided;  held, 
that  such  acts  constituted  a  contempt 
of  the  circuit  court  of  appeals.  In  re 
Noyes,  (In  re  Wood,  In  re  Geary,  In  re 
Frost),   121  Fed.  209,  57  C.  C.  A.  445. 

28.  Application  to  punish  for  con- 
tempt should  be  made  in  the  case  in 
which  the  contempt  was  committed 
rather  than  in  an  independent  proceed- 
ing instituted  in  the  name  of  the  state: 
Ferguson  v.  Wheeler,  126  Iowa  111,  101 
N.  W.   638. 

29.  State  as  party. — Under  some  juris- 
dictions proceedings  to  punish  for  con- 
tempt are  instituted  in  the  name  of 
the  people:  Hughes  v.  Territory  (Ariz.), 
85  Pac.  1058,  6  L.  R.  A.  (N.  S.)  572; 
Kanter  v.  Clerk  of  Circuit  Court,  108 
111.  App.  287.  And  in  the  Oregon  pro- 
cedure, an  amendment  in  civil  contempt 
proceedings  begun  by  a  private  party 
may  be  allowed,  so  as  to  substitute  the 
state  as  party  on  relation  of  the  private 
party  interested:  State  v.  Downing,  40 
Ore.  309,  66  Pac.  917,  construing  Hill's 
Ann.   Laws  §  101. 

30.  The  affidavit,  where  required,  is 
Jurisdictional  in  contempt  proceedings: 
Herdman  v.  State,  54  Neb.  626,  74  N.  W. 
1097.  See  In  re  Coulter,  25  Wash.  526, 
65  Pac.  759;  Otis  v.  Superior  Court,  148 
Cal.  129,  82  Pac.  853;  Back  v.  State,  75 
Neb.   603,  106  N.  W.  787. 

31.  An  affidavit  upon  information  and 
belief  is  insufficient:  Herdman  v.  State, 
54  Neb.  626,  74  N.  W.  1097;  State  v. 
Conn,  37  Ore.  596,  62  Pac.  289.  But 
where  the  facts  are  sufficiently  definite 
and  positively  stated,  the  presence  of 
matter  sworn  to  upon  information  and 
belief  is  immaterial:  State  v.  Harris,  14 
N.  Dak.  501,  105  N.  W.  621;  Davidson 
v.  Munsey,  29  Utah  181,  80  Pac.  743. 

32.  But  allegations  upon  information 
and  belief  may  be  sufficient  to  institute 
the  proceeding  for  contempt  and  put  the 
accused  to  his  denial:  Hughes  v.  Ter- 
ritory (Ariz.),  S5  Pac.  1058,  6  L.  R.  A. 
(N.  S.)   572. 

33.  Omission  cured  by  answer. — Lack 
of  an  allegation  in  the  affidavit  for  con- 
tempt proceedings  may  be  cured  by  an 
admission  In  the  answer  of  the  accused: 
State  v.  Downing,  40  Ore.  309,  66  Pac. 
917;  State  v.  Frew,  24  W.  Va.  416,  49 
Am.  Rep.  257. 

34.  Judgment  must  specify  the  con- 
tempt.— The  judgment  must  specify  the 
insulting  language  used,  where  such  is 
the  basis  of  the  contempt;  otherwise,  it 


is  invalid:  In  re  Elliott,  9  Kan.  App. 
265,  59  Pac.  673.  To  designate  by  gen- 
eral terms,  such  as  that  the  same  was 
"insulting  and  scandalous,"  etc.,  is  in- 
sufficient: In  re  Moxcey,  9  Kan.  App. 
262,    59   Pac.    672. 

35.  The  record  of  conviction  for  con- 
tempt must  show  on  its  face  that  the 
matters  charged  were  within  the  court's 
jurisdiction;  otherwise,  the  judgment  is 
invalid:  Otis  v.  Superior  Court,  148  Cal. 
129,   82  Pac.   853. 

36.  The  commitment  must  specify  the 
particular  circumstances  of  the  offense: 
Emerson  v.  Huss,  127  Wis.  215,  106  N. 
W.    518. 

37.  Refusing  to  answer  question. — Re- 
cital in  commitment. — Commitment  of  a 
witness  for  contempt  in  refusing  to  an- 
swer a  question  in  a  proceeding  in  which 
he  was  called  as  a  witness  must  recite 
the  question  which  the  witness  refused 
to  answer;  otherwise,  the  commitment 
is  void:  Overend  v.  Superior  Court,  131 
Cal.  280,  63  Pac.  372. 

38.  Defenses. — The  truth  of  published 
charges  as  to  the  motives  of  the  court 
can  not  constitute  a  defense  to  a  charge 
of  criminal  constructive  contempt.  The 
provisions  of  the  constitution  making 
the  truth  of  the  charge  a  defense  to  an 
action  for  libel  do  not  apply  to  proceed- 
ings instituted  to  punish  for  contempt: 
People  v.  News-Times  Pub.  Co.,  35  Colo. 
253,   84  Pac.   912. 

39.  The  truth  or  falsity  of  the  pub- 
lished articles  relating  to  pending  cases, 
where  the  court  may,  by  order,  pro- 
hibit their  publication,  is  immaterial: 
Hughes  v.  Territory  (Ariz.),  85  Pac. 
105S,   6  L.   R.   A.    (N.   S.)   572. 

40.  Appealability  of  order. — A  judg- 
ment or  order  in  contempt  proceedings 
is  usually  not  appealable:  Ex  parte 
Brown,  3  Ariz.  411,  77  Pac.  4S9;  People 
v.  Kuhlman,  118  Cal.  140,  50  Pac.  3S2; 
In  re  Wittmeier's  Estate,  118  Cal.  255, 
50  Pac.  393;  Blodgett  v.  State,  50  Neb. 
121,  69  N.  W.  751;  Marinan  v.  Baker, 
12  N.  W.  451,  78  Pac.  531;  Borrer  v.  State 
(Tex.  Cr.  App.),  63  S.  W.  630;  Drainage 
Dist.  No.  1  v.  Costello,  53  Wash.  67,  101 
Pac.   497,    498. 

In  some  jurisdictions,  however,  the  or- 
der or  judgment  in  such  proceedings  is 
made  an  appealable  one:  Merchant  v. 
Pielke,  9  N.  Dak.  245,  83  N.  W.  18; 
State  v.  Gray,  42  Ore.  261,  70  Pac.  904, 
71  Pac.  978;  Hebb  v.  County  Court,  48 
W.  Va.  279,  49  W.  Va.  733,  37  S.   E.  676. 


Ch.CXL.]  DISMISSAL,    ETC.— FORMS.  1867 


CHAPTER   CXL. 

Nonsuit  and  Dismissal. 

Page 

Form  No.  1177.  Dismissal  of  action  by  plaintiff 1867 

Form  No.  1178.  Stipulation  of  dismissal  on  compromise 1867 

Form  No.  1179.  Order  granting  motions  for  nonsuit,  and  allow- 
ing additional  time  in  which  to  prepare  and 

serve  bill  of  exceptions  1867 

Form  No.  1180.  Judgment  of  nonsuit   1868 

§  492.  Annotations    1869 

FORM   No.  1177 — Dismissal  of  action  by  plaintiff. 

[Title  of  court  and  cause.] 

The  above-entitled  action  is  hereby  dismissed,  inasmuch  as  the 
matters  involved  therein  were  adjudged  and  settled  in  and  by  the 
above-named  court  in  case  No.  ,  entitled  ,  plaintiff, 

v.  ,  defendant;  and  the  clerk  of  the  above-named  court  is 

hereby  authorized  and  directed  to  enter  a  dismissal  in  said  action 
upon  the  records  in  his  office. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

FORM   No.  1178 — Stipulation  of  dismissal  on  compromise. 

[Title  of  court  and  cause.] 

The  above-entitled  action  having  been  fully  settled  and  compro- 
mised, it  is  hereby  stipulated  and  agreed  between  the  parties  thereto 
that  the  same  may  be  dismissed,  and  the  clerk  of  the  court  is  hereby 
authorized  and  requested  to  enter  judgment  of  dismissal  therein. 

[Date.]  A.  B.,  Attorney  for  plaintiff. 

C.  D.,  Attorney  for  defendant. 

FORM  No.  1179 — Order  granting  motions  for  nonsuit,  and  allowing  addi- 
tional time  in  which  to  prepare  and  serve  bill  of  excep- 
tions. 

(In  Castro  v.  Adams,  153  Cal.  382;  95  Pac.  1027.) 

[Title  of  court  and  cause.] 

In  this  action,  the  parties  appearing  by  their  respective  attorneys, 
after  evidence  submitted  on  behalf  of  the  plaintiff,  Victor  Castro, 
and  also  on  behalf  of  Clinton  C.  Tripp,  cross-complainant  herein,  and 


J 868  NONSUIT   AND   DISMISSAL.  [Tit.  XVII. 

after  the  plaintiff  and  said  cross-complainant  and  each  of  them  rest, 
a  motion  for  nonsuit  is  made  on  behalf  of  all  the  defendants,  other 
than  the  said  Clinton  C.  Tripp,  upon  the  grounds  set  forth  in  the 
record  of  the  proceedings  herein ;  and  the  motion  being  thereupon 
submitted  for  consideration  and  decision,  and  the  court  having  now 
sufficiently  considered  the  same: 

It  is  ordered,  that  the  said  motion  be  and  the  same  is  hereby 
granted,  to  which  rule  of  the  court  the  plaintiff  and  cross-complain- 
ant, by  their  respective  attorneys,  except.  By  consent  of  counsel, 
the  plaintiff  and  cross-complainant  are  hereby  granted  thirty  days 
in  addition  to  the  ten  days  allowed  by  law  in  which  to  prepare, 
serve,  and  file  their  bill  of  exceptions  herein. 

In  open  court,  September  25,  1891.  J.  V.  Coffey, 

Acting  Judge. 

FORM   No.  1180 — Judgment  of  nonsuit. 

(In  Booream  v.  Potter  Hotel  Co.,  154  Cal.  99;  97  Pac.  65.) 

[Title  of  court  and  cause.] 

The  above-entitled  cause  came  on  regularly  for  trial  in  the  above- 
entitled  court  on  the  26th  day  of  June,  1906,  before  Hon.  Frank  F. 
Oster,  judge  presiding  in  said  court  at  the  request  of  the  Hon.  J.  W. 
Taggart,  superior  judge  of  said  county  of  Santa  Barbara;  H.  C. 
Booth  and  L.  H.  Roseberry  appearing  as  counsel  for  the  plaintiff, 
and  Frank  P.  Flint,  Barker  &  Bowen,  Earl  Rogers,  and  W.  S.  Day 
appearing  as  counsel  for  the  defendant.  The  jury  for  the  trial  of 
said  cause  were  duly  impaneled  and  sworn,  and  oral  and  docu- 
mentary testimony  introduced  on  behalf  of  plaintiff  in  said  action. 
Whereupon,  plaintiff  closed,  and  defendant,  by  its  counsel,  moved 
said  court  to  enter  a  judgment  of  nonsuit  in  said  action,  on  the 
ground  that  upon  the  trial  the  plaintiff  had  failed  to  prove  a  suffi- 
cient case  for  the  jury,  and  stating  the  respects  in  which  said 
plaintiff  had  failed  to  make  such  proof,  which  grounds  were  specified 
in  said  motion.  "Whereupon,  upon  motion  of  said  counsel,  said  court 
decided  to  and  did  grant  such  motion  for  nonsuit,  and  there  was 
caused  to  be  entered  in  the  minutes  of  said  court  a  minute  order 
granting  defendant's  motion  for  nonsuit  therein.  Now,  therefore, 
pursuant  to  law  and  the  premises : 

It  is  hereby  ordered,  adjudged,  and  decreed,  that  a  judgment  of 
nonsuit  be  and  the  same  is  hereby  entered  in  favor  of  defendant  and 


Ch.  CXL.] 


ANNOTATIONS. 


1869 


against  the  plaintiff,  on  the  ground  that  upon  said  trial  the  plaintiff 
has  failed  to  prove  a  sufficient  case  for  the  jury. 

It  is  hereby  further  ordered,  adjudged,  and  decreed,  that  defend- 
ant have  and  recover  against  plaintiff  its  costs  of  suit  herein,  taxed 
at  $ 
Done  and  dated  this  20th  day  of  July,  1906. 

Frank  F.  Oster, 
Judge  presiding. 


§492.     ANNOTATIONS.— Nonsuit  and  dismissal. 

1.  Inherent  authority  of  courts  to  order  dismissal. 
2-4.  Demurrer  to  evidence  as  equivalent  of  motion. 

5.  Judgment  of  dismissal  as  nonsuit. 

6.  Waiver  of  motion  for  nonsuit. — Washington  practice. 

7.  Extent  of  waiver. 

8.  Dismissal  by  plaintiff. — Statutes  construed. 

9.  Rule  under  Oregon  practice. 

10.  Law  of  the  place  governs  on  motion  for  nonsuit. 

11.  Dismissal  as  to  one  or  more  joint  debtors. 

12.  When  defendant  waives  error  in  denying  his  motion. 


1.  Inherent  authority  of  courts  to  or- 
der dismissal. — The  rule  is  generally 
recognized  that  the  courts  have  the 
power  independently  of  the  statute  or  a 
rule  of  court  to  dismiss  an  action  when- 
ever it  appears  that  the  plaintiff  has, 
without  sufficient  excuse,  failed  to 
prosecute  it  to  final  judgment:  Colo- 
rado-Eastern R.  Co.  v.  Union  Pacific 
R.  Co.,  94  Fed.  312,  36  C.  C.  A.  263; 
Ashley  v.  May,  5  Ark.  408;  Depuy  v. 
Shear,  29  Cal.  238;  People  v.  Jefferds, 
126  Cal.  296,  58  Pac.  704;  State  Sav. 
Bank  v.  Albertson,  39  Mont.  414,  102 
Pac.    692,    694. 

2.  Demurrer  to  evidence  as  equiva- 
lent of  motion. — A  motion  for  nonsuit  is 
tantamount  to  a  demurrer  to  the  evi- 
dence, or  an  objection  that,  admitting 
all  the  proved  material  facts  to  be  true, 
said  facts  do  not  in  legal  effect  operate 
in  favor  of  the  plaintiff,  or,  in  other 
words,  do  not  entitle  him  to  the  relief 
asked  for  by  him:  Bush  v.  Wood,  8  Cal. 
App.  647,  97  Pac.  709,  710,  (negligence); 
Kramm  v.  Stockton  Electric  R.  Co.,  10 
Cal.  App.  171,  101  Pac.  914,  918; 
Goldstone  v.  Ice  Co.,  123  Cal.  625,  56 
Pac.  776;  Wasserman  v.  Sloss,,  117  Cal. 
425,  49  Pac.  566,  3S  L.  R.  A.  176,  59  Am. 
St.    Rep.    209. 

3.  A  demurrer  to  the  evidence  is  the 
counterpart,    in    some   states,    of   a   mo- 


tion for  nonsuit,  and  where  the  same  Is 
general  it  has  been  held  that  no  ques- 
tion of  defect  of  parties  can  be  raised 
thereon;  for  to  sustain  a  ruling  upon 
such  ground  would  be  to  bar  the  plaint- 
iff's right  of  recovery  because  of  a 
defect  to  which  his  attention  had  not 
been  called  and  which  he  was  given  no 
opportunity  to  remedy:  Larimore  v. 
Muller,   78  Kan.   459,   96  Pac.  852,  953. 

4.  A  demurrer  to  the  evidence  admits 
as  true  every  fact  which  the  testimony 
tends  to  prove,  and  every  inference 
which  may  reasonably  be  drawn  there- 
from: Kinlen  v.  Metropolitan  St.  R.  Co., 
216  Mo.   145,   115  S.  W.  523,   527. 

5.  Judgment  of  dismissal  as  nonsuit. 
— A  judgment  of  dismissal  following  a 
failure  of  the  plaintiff  to  give  security 
for  costs,  where  ordered  to  do  so,  is  a 
nonsuit  within  the  purview  of  the  stat- 
ute of  limitations:  Wetmore  v.  Church, 
188  Mo.  647,  87  S.  W.  954,  3  Am.  and 
Eng.  Ann.  Cas.  94,  (applying  §  4285,  Mo. 
Rev.    St.    1899). 

6.  Waiver  of  motion  for  nonsuit. — 
Washington  practice. — In  the  state  of 
Washington,  it  is  established  law  that 
a  motion  for  nonsuit  is  waived  by  put- 
ting in  evidence  in  defense:  Port  Town- 
send  v.  Lewis,  34  Wash.  413,  75  Pac. 
982;  Elmendorf  v.  Golden,  37  Wash.  664, 
SO   Pac.   264;   Conine  v.   Olympia  L..   Co., 


1870 


NONSUIT   AND   DISMISSAL. 


[Tit.  XVII. 


42  "Wash.  50,  84  Pac.  407;  Gardner  v. 
Porter,  45  Wash.  158,  88  Pac.  121; 
Cleary  v.  Contracting  Co.,  53  Wash. 
254,   101   Pac.    888,    889. 

7.  Extent  of  waiver. — The  fact  that  a 
defendant  goes  into  his  defense  of  an 
action  after  the  denial  of  his  motion  for 
nonsuit  to  which  he  was  entitled  at  the 
time  the  motion  was  interposed  oper- 
ates as  a  waiver  thereof  merely  to  the 
extent  of  allowing  the  plaintiff  to  ben- 
efit by  any  evidence  introduced  by 
defendant  or  by  himself  in  rebuttal: 
Matson  v.  Port  Townsend  etc.  R.  Co., 
9  Wash.  449,  37  Pac.  705,  cited  in  Dry- 
den  v.  Pelton-Armstrong  Co.,  53  Ore. 
418,  101  Pac.  190,  191.  (See  generally  as 
to  such  waiver  extending  only  to  allow- 
ing plaintiff  the  benefit  of  any  evidence 
thereafter  introduced:  Dimuria  v.  Seat- 
tle Transfer  Co.,  50  Wash.  633,  97  Pac. 
657,  22  L.  R.  A.  (N.  S.)  471;  Bennett  v. 
Northern  Pacific  E.  Co.,  12  Ore.  49,  6 
Pac.  160;  Carney  v.  Duniway,  35  Ore. 
131,  57  Pac.  192,  58  Pac.  105;  Trickey 
v.  Clark,   50  Ore.   516,   93  Pac.   457.) 

8.  Dismissal  by  plaintiff. — Statutes 
construed.— In  an  action  for  damages 
for  personal  injuries,  the  witnesses  for 
the  defendant  testified  out  of  order 
awaiting  the  appearance  of  plaintiff's 
witnesses.  Plaintiff  was  unable  to  se- 
cure the  attendance  of  his  witnesses, 
and  the  court,  not  being  inclined  to 
postpone  the  case  for  the  purpose  of 
obtaining  their  testimony,  the  plaintiff 
made  a  motion  for  a  voluntary  nonsuit. 
Defendant  opposed  the  motion,  and  the 
court  overruled  the  same.  Defendant 
then  moved  for  judgment,  which  was 
granted  by  the  court.  After  motion  for 
new  trial  was  made  and  denied,  judg- 
ment was  entered  dismissing  the  action, 
and  the  plaintiff  appealed.  Upon  the 
appeal  the  court  held  that  the  plaintiff 
was  entitled  as  a  matter  of  right  under 
the  statute  to  an  order  dismissing  the 
action,  there  being  no  set-off  or  coun- 
terclaim: McPherson  v.  Seattle  Electric 
Co.,    53   Wash.    358,    101    Pac.    1084,    1085. 


Ballinger's  Code  and  Stats.  §  5085  is  as 
follows:  "An  action  may  be  dismissed, 
or  a  judgment  of  nonsuit  entered  in 
the  following  cases:  (1)  By  the  plaintiff 
himself,  at  any  time,  either  in  term 
time  or  in  vacation,  before  the  jury 
retire  to  consider  their  verdict,  unless 
set-off  be  interposed  as  a  defense,  or 
unless  the  defendant  sets  up  a  counter- 
claim to  the  specific  property  or  thing 
which  is  the  subject-matter  of  the 
action,"  etc.  For  right  of  plaintiff  to 
a  voluntary  nonsuit  under  this  statute, 
see  Fiske  v.  Tacoma  Smelting  Co.,  49 
Wash.  514,  95  Pac.  1082;  McPherson  v. 
Seattle  Electric  Co.,  53  Wash.  358,  101 
Pac.   1084,   1085. 

9.  Rule  under  Oregon  practice. — A 
motion  for  nonsuit  is  not  waived  after 
denial  of  the  same  by  the  introduction 
of  evidence  on  behalf  of  the  moving 
party:  Dryden  v.  Pelton-Armstrong  Co., 
53  Ore.   418,  101  Pac.  190. 

10.  Law  of  the  place  governs  on  mo- 
tion for  nonsuit. — A  motion  for  judg- 
ment of  nonsuit  is  a  branch  of  pro- 
cedure, and  the  law  of  the  place  of  trial 
must  govern  in  all  matters  relating  to 
this  remedy:  Dryden  v.  Pelton-Arm- 
strong Co.,  53  Ore.  418,  101  Pac.  190,  192. 

11.  Dismissal  as  to  one  or  more  joint 
debtors. — Under  the  Missouri  statute, 
one  suing  on  a  joint  contract  may  dis- 
miss as  to  one  defendant,  and  proceed 
so  as  to  show  single  liability  of  the 
other:  Reifschneider  v.  Beck  (Mo.  App.), 
129    S.    W.    232. 

12.  When  defendant  waives  error  in 
denying  his  motion. — An  error  in  deny- 
ing a  motion  for  nonsuit  is  waived 
where  defendant  did  not  rest  his  case 
after  denial  of  the  motion,  but  intro- 
duced evidence  in  his  own  behalf  sup- 
plying the  defects  in  plaintiff's  proof: 
Lyon  v.  United  Moderns,  148  Cal.  470, 
83  Pac.  804,  113  Am.  St.  Rep.  291,  4  L.  R. 
A.  (N.  S.)  247,  7  Am.  &  Eng.  Ann.  Cas. 
672.  See  Scrivani  v.  Dondero,  128  Cal. 
31,  32,  60  Pac.  463,  and  other  cases  cited 
in  Lyon  v.   United  Moderns,   supra. 


Ch.  CXLL]  FINDINGS,   ETC.— FORMS.  1871 

CHAPTER  CXLI. 

Findings  and  Judgment. 

Page 

8  493.  Findings  of  fact  and  conclusions  of  law 1871 

Form  No.  1181.  Findings  of  fact  and  conclusions  of  law 1871 

Form  No.  1182.  Additional  findings. — Action  to  quiet  title,  and 
for  value  of  rents  and  profits,  and  for  resti- 
tution      1872 

$  494.  Judgments 1874 

Form  No.  1183.  Judgment  for  plaintiff  by  the  court 1874 

Form  No.  1184.  Judgment  for  defendant.     (Common  form.)..  1875 

Form  No.  1185.  Entry  by  clerk 1875 

Form  No.  1186.  Judgment    by    the    court    on    verdict    for    the 

plaintiff    1875 

Form  No.  1187.  Judgment  for  plaintiff  on  verdict.     (Entry  by 

clerk.)   1876 

Form  No.  1188.  Judgment  of  dismissal.     (Entry  by  clerk.) 1876 

Form  No.  1189.  Judgment  of  default.     (Entry  by  clerk.) 1877 

Form  No.  1190.  Notice  of  motion  for  judgment  on  the  plead- 
ings     1877 

Form  No.  1191.  Order  sustaining  demurrer  without  leave  to 
amend,  and  granting  motion  for  judgment 

on  the  pleadings 1878 

Form  No.  1192.  Consent  of  plaintiff  to  reduction  of  judgment  1878 

Form  No.  1193.  Nunc  pro  tunc  order  reducing  judgment 1879 

Form  No.  1194.  Satisfaction  of  judgment  for  costs 1879 

Form  No.  1195.  Amended  judgment  for  defendant 1880 

Form  No.  1196.  Order   of   sheriff's   sale   of   real   estate    under 

judgment 1880 

§  495.  Confession  of  judgment  without  action 1881 

Form  No.  1197.  Confession  of  judgment 1881 

Form  No.  1198.  Entry   of  judgment   confessed.      (Annexed    to 

the  foregoing.)   1882 

|  496.  Annotations    1 882 

§493.     FINDINGS  OF  FACT  AND  CONCLUSIONS  OF  LAW. 
FORM   No.  1181 — Findings  of  fact  and  conclusions  of  law. 

(In  County  of  Glenn  v.  Klemmer,  153  Cal.  211;  94  Pac.  894.) 
[Title  of  court  and  cause.] 

Findings  of  fact. 

The  above-entitled  cause  having  been  submitted  to  the  court  upon 
a  stipulation  by  the  respective  parties  as  to  the  facts,  and  the  court 


1872 


FINDINGS  AND  JUDGMENT.  [Tit.  XVII. 


having  considerel  the  same,  now,  in  accordance  with  said  stipula- 
tion, the  court  finds  the  facts  as  follows: 

1.  That  all  the  allegations  of  plaintiff's  complaint  on  file  herein 
are  true. 

2.  That  the  claims  referred  to  in  said  complaint,  and  each  and 
all  of  them,  are  not  for  work  and  labor  done  or  performed  upon 
roads  and  bridges,  or  roads  or  bridges,  which  have  been  destroyed 
or  rendered  impassable  by  flood  or  fire  in  said  road  district  No.  1,  of 
the  county  of  Glenn. 

Conclusions  of  law. 

From  the  foregoing  facts  the  court  legally  concludes: 
That  the  plaintiff  is  entitled  to  a  decree  perpetually  enjoining  and 
restraining  defendant,  L.  J.  Klemmer,  as  treasurer  of  the  said  county 
of  Glenn,  from  paying  any  and  all  of  said  claims,  and  that  said 
decree  also  enjoin  and  restrain  intervener,  Hochheimer  &  Co.,  from 
enforcing  or  collecting  said  claims  or  any  of  them  from  the  plaintiff. 
That  plaintiff  is  entitled  to  its  costs  herein  incurred  or  expended. 

Let  a  decree  be  entered  accordingly. 

John  F.  Ellison, 

Judge  of  Superior  Court. 

FORM   No.  1182 — Additional  findings. — Action  to  quiet  title,  and  for  value  of 
rents  and  profits,  and  for  restitution. 

(In  Gage  v.  Gunther,  136  Cal.  338;  68  Pac.  710;  89  Am.  St.  Rep.  141.)1 

[Title  of  court  and  cause.] 

The  above-entitled  cause  having  already  been  heard  upon  and  sub- 
mitted for  decision  of  the  issues  raised  by  the  cross-complaint  of 
defendant,  0.  H.  Newman,  and  the  answer  of  plaintiff  thereto,  and 
the  court  having  heretofore  made  and  filed  its  findings  of  fact  and 
conclusions  of  law  upon  said  issues,  and  it  having  been  stipulated 
by  all  the  parties  to  said  action,  in  open  court,  upon  the  hearing  of 
said  cause,  that  the  United  States  patent  issued  to  said  plaintiff, 
Matthew  Gage,  on  April  21,  1896,  for  section  30,  township  2  south  of 
range  4  west  of  San  Bernardino  base  and  meridian,  be  considered 
as  introduced  in  evidence,  and  all  of  said  parties  having,  after  the 
filing  of  the  findings  hereinabove  mentioned,  entered  into,  signed, 
and  filed  with  the   clerk  of  said   court   a   stipulation  in  writing, 

i  For  the  complaint  and  decree  in  this  action,  see  ch.  LIT,  forms  Nos.  430,  442. 


Ch.  CXLI.]  FINDINGS,   ETC.— FORMS.  1873 

whereby  they  stipulated  and  agreed  that  the  whole  of  said  cause, 
including  all  issues  raised  by  the  pleadings  therein,  both  on  its  legal 
side  and  on  its  equitable  side,  be  considered  as  submitted  to  the  court 
upon  the  evidence  theretofore  introduced  in  said  cause  for  deter- 
mination and  decision,  without  further  hearing  or  introduction  of 
evidence,  and  that  the  legal  branch  of  said  cause  might  be  decided 
by  the  court  sitting  without  a  jury,  and  that  said  decision  of  the 
legal  branch  of  said  cause  might  be  made  without  any  findings  of 
fact  other  than  such  as  had  theretofore  been  made  and  filed  concern- 
ing any  allegation  appearing  both  in  the  answer  of  said  defendant, 
0.  H.  Newman,  the  complaint  of  plaintiff,  and  in  the  cross-complaint 
of  said  defendant,  0.  H.  Newman,  filed  with  said  answer;  and  the 
plaintiff  having  waived  all  claim  to  damages  against  said  defendant : 
Now,  after  due  deliberation,  the  court  finds  the  following  facts : 

1.  That  on  the  21st  day  of  April,  1896,  the  plaintiff,  Matthew 
Gage,  was,  and  ever  since  has  been,  and  now  is,  the  absolute  owner 
of,  seized  in  fee  of,  and  entitled  to  the  possession  of,  that  certain 
tract  and  tracts  of  land  situated  in  the  county  of  Riverside,  and  state 
of  California,  and  described  as  follows,  to  wit:  [Here  follows  de- 
scription.] 

That  it  is  not  true  that  the  title  under  which  the  plaintiff  claims 
said  land  is  of  no  validity,  or  that  whatever  paper  title  said  plaintiff 
may  have  in  said  land  is  held  in  trust  for  the  defendant,  0.  H. 
Newman. 

2.  That  plaintiff's  claim  to  said  land  is  based  upon  a  United  States 
patent  issued  to  said  plaintiff  on  the  21st  day  of  April,  1896,  and  that 
said  patent  was  issued  upon  a  desert-land  entry  made  by  said  plaint- 
iff on  the  1st  day  of  March,  1882,  and  that  said  section  30  was  on 
said  1st  day  of  March,  1882,  and  ever  since  has  been,  an  even 
section  of  land  within  the  limits  of  a  grant  of  land  made  by 
Congress  to  the  Southern  Pacific  Railroad  Company;  but  that  said 
section  30  was  nevertheless  subject  to  entry  and  sale  under  the 
desert-land  law  when  said  plaintiff  made  his  application  to  purchase 
the  same  under  his  desert-land  application. 

3.  That  the  said  patent  issued  as  aforesaid  to  said  plaintiff  was 
not  issued  without  authority  of  law,  and  was  not  null  and  void ;  but 
that  said  patent  was  lawfully  issued,  and  was  a  valid  conveyance  of 
said  land  to  the  plaintiff. 

4.  That  while  the  plaintiff  was  and  is  so  the  absolute  owner  of  said 
premises,  and  entitled  to  the  possession  thereof,  the  defendant,  0.  H. 


]£74  FINDINGS  AND  JUDGMENT.  [Tit.  XVIL 

Newman,  has  entered  into  possession  of  said  premises  without  right, 
title,  or  license  from  the  plaintiff,  and  wrongfully  withholds  the  pos- 
session of  the  same  from  the  plaintiff,  and  still  continues  to  withhold 
possession  from  plaintiff. 

Conclusions  of  Law. 

As  conclusions  of  law  from  the  foregoing  facts  the  court  finds: 
That  the  plaintiff  is  entitled  to  judgment  against  the  defendant,  0. 
H.  Newman,  for  the  recovery  of  possession  of  the  real  property 
described  in  the  complaint  of  said  plaintiff,  and  that  a  writ  of 
possession  issue  from  this  court  removing  said  defendant,  0.  H. 
Newman,  from  said  land  and  restoring  plaintiff  to  the  possession 
thereof. 

Let  judgment  be  entered  in  accordance  with  these  findings,  and 
with  the  findings  heretofore  made  and  filed  herein. 

Dated  July  17,  1889.  J.  S.  Noyes,  Judge. 

§494.     JUDGMENTS. 

FORM    No.   1183 — Judgment  for  plaintiff  by  the  court. 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  for  trial,  on  the  day  of  , 

19     ,  appearing  as  counsel  for  the  plaintiff,  and 

for  the  defendant.  A  trial  by  jury  having  been  expressly  waived 
by  the  counsel  for  the  respective  parties,  the  cause  was  tried  before 
the  court  sitting  without  a  jury;  whereupon  witnesses  on  the  part 
of  the  plaintiff  and  defendant  were  sworn  and  examined,  and,  the 
evidence  being  closed,  the  cause  was  submitted  to  the  court  for  con- 
sideration and  decision,  and,  after  due  deliberation  thereon,  the 
court  delivers  and  files  its  findings  and  decision  in  writing,  and 
orders  that  judgment  be  entered  in  accordance  therewith.  "Where- 
fore, by  reason  of  the  law  and  the  findings  and  decision  aforesaid : 

It  is  ordered,  adjudged,  and  decreed,  that  the  plaintiff,  ,  do 

have  and  recover  of  and  from  the  defendant,  ,  the  sum  of 

$  ,  together  with  plaintiff's  costs  and  disbursements  incurred 

in  this  action,  amounting  to  the  sum  of  $ 

Judgment  rendered  this  day  of  ,  19 

S.  T.,  Judge. 


Ch.  CXLL]  JUDGMENTS,  ETC.— FORMS.  1875 

FORM   No.  1184 — Judgment  for  defendant.     (Common  form.) 

[Title  of  court  and  cause.] 

The  above-entitled  action  coming  on  regularly  for  hearing  on  this 
day  of  ,  19     ,  appearing  for  plaintiff,  and 

appearing  for  defendant,  and  evidence  having  been  introduced  by 
each  of  the  respective  parties,  and  said  cause  having  been  submitted 
for  decision,  and  the  court,  being  fully  advised,  having  rendered  its 
findings  of  fact  and  conclusions  of  law  herein,  wherein  judgment  is 
ordered  in  favor  of  the  defendant  and  against  the  plaintiff:  Now, 
therefore,  by  reason  of  the  law  and  the  findings  aforesaid: 

It  is  ordered,  adjudged,  and  decreed,  that  the  plaintiff  take  noth- 
ing by  this  action,  and  that  defendant  have  judgment  for  his  costs 
herein,  taxed  at  $ 

[Date  of  rendition.]  S.  T.,  Judge. 

[Entry.] 

FORM   No.  1185— Entry  by  clerk. 

[Proceed  as  in  either  of  foregoing  forms,  as  the  judgment  may  be, 
to  the  conclusion.] 

Judgment  rendered  this  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

[Entry.]  By  ,  Deputy  Clerk. 

FORM   No.  1186 — Judgment  by  the  court  on  verdict  for  the  plaintiff. 

(In  Braly  v.  Fresno  City  R.  Co.,  9  Cal.  App.  417;  99  Pac.  400.) 

[Title  of  court  and  cause.] 

This  action  came  on  regularly  for  trial.  The  said  parties  appeared 
by  their  attorneys,  Messrs.  L.  L.  Cory  and  M.  K.  Harris,  counsel  for 
plaintiff,  and  Frank  H.  Short,  F.  E.  Cook,  and  Everts  &  Ewing, 
counsel  for  defendant.  A  jury  of  twelve  persons  were  regularly 
impaneled  and  sworn  to  try  said  action.  "Witnesses  on  the  part  of 
plaintiff  and  defendant  were  sworn  and  examined.  After  hearing 
the  evidence,  the  arguments  of  counsel,  and  the  instructions  of  the 
court,  the  jury  retired  to  consider  their  verdict,  and  subsequently 
returned  into  court,  and,  being  called,  answered  to  their  names  and 
said:  "We,  the  jury  in  the  above-entitled  cause,  find  for  the  plaint- 
iff, and  assess  his  damages  at  the  sum  of  $5,000.  F.  L.  Bagley, 
Foreman." 

Wherefore,  by  verdict  of  the  law,  and  by  reason  of  the  premises 


1876  FINDINGS  AND  JUDGMENT.  [Tit.  XVII. 

aforesaid,  it  is  ordered,  adjudged,  and  decreed,  that  plaintiff,  J.  M. 
Braly,  do  have  and  recover  from  defendant,  Fresno  City  Railway 
Company,  a  corporation,  the  sum  of  $5,000,  and  also  said  plaintiff 
do  have  and  recover  from  said  defendant  his  costs  and  disburse- 
ments incurred  in  this  action,  amounting  to  the  sum  of  $98.70. 

Dated  April  12,  1907.  George  E.  Church, 

Judge  of  Superior  Court. 

[Endorsements  of  filing  and  recording.] 

FORM    No.   1187 — Judgment  for  plaintiff  on  verdict.     (Entry  by  clerk.) 

(In  Schneider  v.  Market  Street  R.  Co.,  134  Cal.  482;  66  Pac.  734.) 

[Title  of  court  and  cause.] 

This  cause  came  on  regularly  for  trial,  "William  J.  Herrin,  Esq., 
appearing  as  counsel  for  the  plaintiff,  and  W.  H.  L.  Barnes,  Esq., 
for  the  defendant.  Thereupon,  a  jury  of  twelve  persons  were  duly 
selected,  impaneled,  and  sworn  to  try  said  cause;  and  witnesses  on 
the  part  of  the  plaintiff  and  defendant  were  duly  sworn  and  exam- 
ined. After  hearing  the  evidence,  the  arguments  of  counsel,  and 
the  instructions  of  the  court,  the  cause  was  submitted  to  the  jury, 
who  retired  to  deliberate  upon  their  verdict,  and  subsequently 
returned  into  court,  and,  being  called,  all  answered  to  their  names, 
and  then  rendered  the  following  verdict,  which  was  accepted  by  the 
court  and  entered  on  the  minutes,  as  follows :  [Here  follows  verdict 
of  jury  as  in  form  No.  1186.] 

Wherefore,  by  virtue  of  the  law,  and  by  reason  of  the  premises 
aforesaid : 

It  is  ordered,  adjudged,  and  decreed,  that  the  plaintiff,  , 

have  and  recover  from  the  defendant,  ,  the  sum  of  $  , 

with  interest  thereon  at  the  rate  of  per  cent  per  annum  from 

the  date  hereof  until  paid,  together  with  plaintiff's  costs  and  dis- 
bursements incurred  in  this  action,  amounting  to  the  sum  of  $ 

Judgment  rendered  this  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

FORM   No.  1188— Judgment  of  dismissal.     (Entry  by  clerk.) 

[Title  of  court  and  cause.] 

On  application  of  the  plaintiff,  and  upon  payment  by  him  of  all 
costs,  and  no  counterclaim  having  been  made,  or  affirmative  relief 
sought  by  cross-complaint  or  answer  of  the  defendant,  a  request  for 


Ch.  CXLI.]  JUDGMENTS.  ETC.— FORMS.  1877 

dismissal  of  this  cause  having  been  duly  entered  in  the  register  of 
actions  in  the  office  of  the  clerk  of  this  court,  said  cause  is  therefore 
hereby  dismissed. 

Judgment  entered  this  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

FORM   No.  1189— Judgment  of  default.     (Entry  by  clerk.) 

[Title  of  court  and  cause.] 

In  this  cause,  defendant,  ,  having  been  regularly  served 

with  process,  and  having  failed  to  appear  and  answer  the  plaintiff's 
complaint,  and  the  time  for  answering  having  expired,  and  the 
default  of  the  defendant  having  been  duly  entered  according  to  law, 
upon  application  of  the  plaintiff  to  the  clerk,  judgment  is  hereby 
entered  against  defendant  in  accordance  with  the  prayer  of  said 
complaint.  Wherefore,  by  virtue  of  the  law  and  by  reason  of  the 
premises  aforesaid: 

It  is  ordered,  adjudged,  and  decreed,  that  plaintiff  have  and 
recover  of  and  from  defendant  the  sum  of  $  ,  with  interest 

thereon  at  the  rate  of  per  cent  per  annum  from  the  date 

hereof  until  paid,  together  with  plaintiff's  costs  and  disbursements 
incurred  in  said  action,  amounting  to  the  sum  of  $  ,  and  that 

plaintiff  have  execution  therefor. 

Judgment  rendered  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

FORM   No.  1190 — Notice  of  motion  for  judgment  on  the  pleadings. 
(In  Levy  v.  Lyon,  153  Cal.  213;  94  Pac.  881.) 

[Title  of  court  and  cause.] 

To  M.  J.  Lyon,  defendant  above  named,  and  Milton  L.  Schmitt, 
his  attorney: 

Please  take  notice,  that  the  plaintiff  will  on  Monday,  January  29, 
1906,  at  the  above-named  court,  in  the  courthouse  at  San  Jose,  Cali- 
fornia, in  department  No.  2  thereof,  at  the  hour  of  10  o'clock  A.  M. 
of  said  day,  or  as  soon  thereafter  as  counsel  can  be  heard,  move  the 
above-named  court  for  judgment  on  the  pleadings  in  said  action,  on 
the  ground  that  the  answer  and  cross-complaint  filed  therein  are 
sham,  frivolous,  and  wholly  insufficient  to  constitute  a  defense  to  the 

Jury's  PL— 119. 


L818  FINDINGS  AND  JUDGMENT.  [Tit.  XVII 

said  action,  and  wholly  barren  of  any  equities  or  claims  of  right  in 
the  defendant  to  entitle  him  to  the  relief  sought,  or  to  any  equitable, 
legal,  or  other  relief  whatsoever. 

Said  motion  will  be  based  upon  the  pleadings  on  file  in  the  action. 

E.  M.  Rosenthal, 

Attorney  for  plaintiff. 

FORM   No.  1191 — Order   sustaining    demurrer  without    leave   to   amend,   and 
granting  motion  for  judgment  on  the  pleadings. 

(In  Levy  v.  Lyon,  153  Cal.  213;  94  Pac.  881.) 

[Title  of  court  and  cause.] 

This  cause  coming  on  regularly  for  hearing  at  this  time,  after 
argument  by  the  respective  attorneys,  and  the  court  being  fully 
advised  in  the  premises: 

It  is  ordered,  that  the  demurrers  to  the  answer  and  cross-complaint 
be  and  the  same  are  hereby  sustained  without  leave  to  amend. 

It  is  further  ordered  by  the  court,  that  plaintiff's  motion  for 
judgment  on  the  pleadings  be  and  the  same  is  hereby  granted. 

[Date.]  M.  H.  Hyland,  Judge. 

FORM   No.  1192 — Consent  of  plaintiff  to  reduction  of  judgment. 

(In  O'Rourke  v.  Finch,  9  Cal.  App.  324;  99  Pac.  392.) 

[Title  of  court  and  cause.] 

To  defendants  herein,  and  their  attorneys,  Messrs.  Lynch  & 
Drury : 

You  and  each  of  you  will  please  take  notice,  that  judgment  having 
been  rendered  in  this  cause  for  the  sum  of  $1,000  in  favor  of  said 
plaintiff  and  against  you,  the  said  defendants,  and  that  the  said 
court,  on  the  2d  day  of  December,  1907,  upon  the  motion  for  a  new 
trial  herein,  after  the  same  was  argued  and  submitted  for  decision, 
rendered  its  decision  on  said  motion,  and  granted  the  same,  unless 
the  plaintiff,  within  twenty  days  from  the  rendering  of  said  decision, 
consent  and  agree  to  the  reduction  of  said  judgment  from  said  sum 
of  $1,000  to  the  sum  of  $750:  Now  come  the  said  plaintiff  and  his 
attorneys,  "W.  H.  Morrissey  and  Don.  R.  Jacks,  within  said  twenty 
days  after  the  date  of  the  order  aforesaid,  to  wit,  on  this,  the  12th 


Ch.  CXLL]  JUDGMENTS,  ETC.— FORMS.  1879 

day  of  December,  1907,  and  consent  to  and  agree  that  said  judgment 
be  reduced  from  the  sum  of  $1,000  to  the  sum  of  $750. 

John  H.  J.   O'Rourke,  Plaintiff, 
By  Frank  J.  O'Rourke,  his  guardian  ad  litem. 
W.  H.  Morrissey, 
Don.  R.  Jacks, 

Attorneys  for  plaintiff. 

FORM   No.  1193 — Nunc  pro  tunc  order  reducing  judgment. 

(In  O'Rourke  v.  Finch,  9  Cal.  App.  324;  99  Pac.  392.) 

[Title  of  court  and  cause.] 

This  court  having,  on  the  2d  day  of  December,  1907,  made  and 
entered  its  order  on  defendants'  motion  for  a  new  trial,  to  the  effect 
that  a  new  trial  in  this  action  would  be  granted,  unless  plaintiff 
within  twenty  days  from  the  entry  of  said  order  consent  that  the 
verdict  and  judgment  herein  be  reduced  from  the  sum  of  $1,000,  for 
which  said  judgment  was  heretofore  rendered  and  entered,  to  the 
sum  of  $750,  in  which  event  an  order  would  be  made  denying  said 
motion  for  a  new  trial,  and  it  appearing  that  plaintiff,  by  a  written 
consent  filed  in  open  court  on  the  12th  day  of  December,  1907,  has 
agreed  to  said  reduction  of  said  verdict  and  judgment  to  said  sum 
of  $750 : 

It  is  therefore  hereby  ordered,  that  the  verdict  and  judgment  in 
the  above-entitled  action  heretofore  entered  for  the  sum  of  $1,000 
be  and  the  same  is  hereby  reduced  to  the  sum  of  $750. 

Dated  February  4,  1908.     This  order  to  be  entered  nunc  pro  tunc 

as  of  December  12,  1907.  T  .     TT 

John  Hunt, 

Judge  of  Superior  Court. 
FORM   No.  1194 — Satisfaction  of  judgment  for  costs. 

[Title  of  court  and  cause.] 

Full  satisfaction  and  payment  is  hereby  acknowledged  of  that 
certain  judgment  made  and  rendered  in  and  by  the  above-named 
court  in  the  above-entitled  action,  and  duly  entered  in  book  of 

judgments  at  page  ,  on  the  day  of  ,  19     ,  in  favor  of 

plaintiff  therein  and  against  defendants,  for  the  sum  of  $ 
plaintiff's  costs  incurred  in  said  action;  and  the  clerk  of  said  court 
is  hereby  authorized  and  directed  to  enter  the  satisfaction  thereof  in 
said  action. 

[Date.]  D.  E.,  Plaintiff. 


1880  FINDINGS  AND  JUDGMENT.  [Tit.  XVII. 

FORM   No.  1195— Amended  judgment  for  defendant. 

(In  Burkett  v.  Griffith,  90  Cal.  532;  27  Pac.  527;  25  Am.  St.  Rep. 
151;  13  L.  R.  A.  707.) 

[Title  of  court  and  cause.] 

In  this  action  the  defendant  having  appeared  and  demurred  to  the 
plaintiff's  complaint  herein,  and  the  issue  of  law  thereto  arising 
having  been  duly  submitted  to  the  court  by  the  respective  parties 
plaintiff  and  defendant,  and  the  court  being  fully  advised  in  the 
premises,  did  heretofore  sustain  said  demurrer,  and  refused  leave  to 
plaintiff  to  amend  his  complaint,  and  the  defendant  having  hereto- 
fore applied  to  the  clerk  of  the  court  to  enter  judgment  herein,  and 
said  clerk  having,  pursuant  to  such  application,  entered  a  judgment 
herein  against  the  defendant  for  the  costs  in  this  action,  and  said 
clerk  having  failed  to  make  an  entry  of  judgment  with  reference  to 
the  disposition  of  the  case  itself,  and  the  defendant  being  entitled  to 
a  judgment  dismissing  said  action,  as  well  as  for  costs  herein : 

It  is  therefore  ordered,  adjudged,  and  decreed,  that  the  judgment 
heretofore  entered  in  said  cause  be  amended  so  as  to  read  as  follows : 

It  is  by  the  court  further  ordered,  adjudged,  and  decreed,  that  said 
action  be  and  the  same  is  hereby  dismissed,  and  that  defendant  do 
have  and  recover  from  plaintiff  his,  defendant's,  costs  and  disburse- 
ments incurred  in  this  action,  amounting  to  the  sum  of  $5.70. 

[Date.]  "Walter  Van  Dyke, 

Judge  of  Superior  Court. 

FORM   No.  1196 — Order  of  sheriff's  sale  of  real  estate  under  judgment. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  ,  to  the  sheriff  of  said  county, 

greeting : 

Whereas,  ,  on  the  day  of  ,  19     ,  recovered  a 

judgment  against  in  an  action  wherein  the  said 

was  plaintiff,   and  the   said  was   defendant,   which   said 

judgment  is  recorded  in  judgment  book  ,  of  the  said  [superior] 

court,  on  page  ,  and  which  is  in  the  words  and  figures  fol- 

lowing, to  wit:  [Here  copy  the  judgment  which  provides  for  such 
sale.] 

Now,  therefore,  you,  the  said  sheriff  of  the  county  of  ,  are 

hereby  commanded  and  required  to  proceed  to  give  notice  for  sale, 
and  to  sell,  the  premises  hereinbefore  described,  for  gold  coin  of 
the  United  States,  and  to  apply  the  proceeds  of  such  sale  to  the 


Ch.  CXLI.]  JUDGMENT   WITHOUT  ACTION.— FORMS.  1881 

satisfaction  of  said  judgment,  with  the  interest  thereon  and  costs, 
together  with  your  fees,  and  to  make  and  file  your  report  of  such 
sale  to  the  clerk  of  the  said  superior  court  within  days  from 

the  date  hereof,  and  to  do  all  things  according  to  the  terms  and 
requirements  of  the  said  judgment,  and  the  provisions  of  the  statute 
in  such  case  made  and  provided. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of  the  county 

of  ,  state  of  ,  and  the  seal  of  said  court,  this  day 

of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsements  on  the  foregoing  writ :] 
Clerk 's  fees,  as  follows : 

This  writ $ 

Docket  and  filing $ 

Satisfaction $ 

Total  clerk's  fees  on  writ.$ 
Attest:  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Filing  endorsement.] 

Form  of  judgment  in  an  action  brought  by  an  assignee  to  determine  the  rights 
of  the  plaintiff  in  and  to  a  large  amount  of  personal  property  and  notes  mort- 
gaged  and   pledged   by   his   assignor:      Mowry   v.   First   Nat.    Bank,    54   Wis.    43,    11 

N.   W.    247. 

§495.     CONFESSION  OF  JUDGMENT  WITHOUT  ACTION. 
FORM    No.  1197 — Confession  of  judgment. 

[Title  of  court  and  cause.] 

I,  John  Doe,  defendant  in  the  above-entitled  action,  do  hereby 
confess  judgment  herein  in  favor  of  the  plaintiff,  Richard  Roe,  for 
the  sum  of  $  ,  and  I  hereby  authorize  entry  of  judgment  herein 

for  said  amount  in  favor  of  said  plaintiff.  I  hereby  state  that  said 
sum  of  $  ,  for  which  judgment  is  confessed  herein,  is  justly 

due  [or  justly  to  become  due]  from  me  to  the  said  Richard  Roe,  the 
facts  concerning  which  are  as  follows :  [Here  state  facts  briefly  to 
show  that  the  sum  confessed  is  justly  due  or  to  become  due.]  [If 
the  confession  of  judgment  be  for  the  purpose  of  securing  the  plaint- 
iff against  a  contingent  liability,  add:  "And  I  further  state  that 
this  confession  of  judgment  is  for  the  purpose  of  securing  the 
plaintiff  against  a  contingent  liability,  and  that  the  facts  thereof  are 
as  follows :     (Here  state  concisely  the  facts  constituting  such  liabil- 


1882  FINDINGS  AND  JUDGMENT.  [Tit.  XVII. 

ity)  ;  and  further,  that  the  sum  confessed  therefor  does  not  exceed 
the  amount  of  said  contingent  liability."] 

[Verification.]  [Signature.] 

FORM   No.  1198 — Entry  of  judgment  confessed.     (Annexed  to  the  foregoing.) 

[Title  of  court  and  cause.] 

On  filing  the  within  and  foregoing  statement,  confession,  and  veri- 
fication [or  affidavit],  wherein  judgment  is  authorized  and  consented 
to  be  entered  in  favor  of  plaintiff  herein  for  the  sum  of  $  : 

It  is  therefore  ordered  and  adjudged,  that  the  plaintiff  do  have 
and  recover  of  and  from  the  defendant  herein  the  sum  of  $  , 

together  with  $  ,  costs  herein. 

[Date.]  ,  Clerk. 

By  ,  Deputy. 

For  form  of  judgment  on  the  pleadings  in  an  action  to  set  aside  and  vacate 
a  judgment,   see  Randall  v.   Fox   (Ariz.),  108  Pac.   249,   250. 

For  form  of  final  judgment  in  an  action  to  recover  for  injuries  alleged  to  have 
been  sustained  by  plaintiff  while  in  the  defendant's  employ,  and  through  defend- 
ant's negligence,  the  same  affirmed  on  appeal,  and  held  not  a  judgment  of  non- 
suit, see  McGuire  v.  Bryant  etc.  Co.,  53  Wash.  425,  102  Pac.  237,  238. 

§496.     ANNOTATIONS. — Findings  and  judgment. 

1.   Findings. — As  to  averments  not  denied. 
2,  3.  General  rule  as   to   findings  on   separate  counts. 

4.  Finding   as    to    truth    of    allegations    generally. 

5.  Remedy  where  findings  are  imperfect. 

6.  Verdict. — Defective  statement  of  cause  cured  by. 

7.  Presumptions   after  verdict. 

8.  On  a  motion  for  a  directed  verdict. 

9.  Judgment    generally. — Definition. 

10.  Iowa   statutes   relating   to   entry   of  judgment. 

11.  Irregular  entry  of  decree. 

12.  Personal  judgment  not  valid  against  non-resident. 

13.  Judgment  upon  issue  of  law  where  unliquidated  damages  are  claimed. 

14.  Joint  judgment  against  defendants  guilty  of  tort. 

15.  Motion  in  arrest  of  judgment. 

16.  Motion  in  arrest — When  defendant  may  invoke. 

17.  Motion   in  arrest  for  defect  in  verdict. 

18.  A  motion  for  judgment  non  obstante  veredicto. 

19.  Motion  to  vacate  for  error  of  fact. — Missouri  practice. 

20.  Motion  to  vacate  a  judgment,  charging  the  fact  of  death. 

21.  Judgment   upon   the  pleadings. 

22,  23.  Motion  not  substitute  for  demurrer. 
24,  25.  Motion   admits   truth   of  pleas. 

26.  Motion  proper  when  denials  are  only  of  conclusions. 

27.  Relation  of  inconsistent  defenses  to  the  motion. 

28.  Arizona  practice. 

29.  Waiver  of  motion. 

1.  FINDINGS. — As  to  averments  not  a  material  fact  is  alleged,  and  the  an- 
denied. — Where,  in  a  verified  complaint,       swer  fails  to  deny  the  same,   the  truth 


Ch.  CXLI .] 


ANNOTATIONS. 


188:j 


of  such  an  averment  is  admitted,  and 
no  finding  on  the  subject  is  necessary: 
Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal. 
App.    514,    97   Pac.    414,    420. 

2.  General  rule  as  to  findings  on  sep- 
arate counts. — As  a  general  rule,  where 
there  are  several  counts  in  a  petition, 
each  stating  a  different  cause  of  action, 
there  should  be  a  separate  finding  on 
each:  Cramer  v.  Barmon,  193  Mo.  329, 
91  S.  W.  103S;  Brownell  v.  Pacific  R. 
Co.,  47  Mo.  239;  Clark  v.  Hannibal  etc. 
R.  Co.,  36  Mo.  202,  212;  Russell  v.  Rail- 
road  Co.,   154  Mo.   428,   55  S.   W.   454. 

3.  One  finding,  however,  is  sufficient 
where  the  several  counts  relate  to  the 
same  transaction:  Southern  Missouri 
etc.  R.  Co.  v.  Wyatt,  223  Mo.  347,  122 
S.  W.  688;  State  v.  Pitts,  58  Mo.  556; 
State  v.  Jennings,  81  Mo.  185,  51  Am. 
Rep.  236;  State  v.  Bean,  21  Mo.  267; 
State  v.  McCue,  39  Mo.   112. 

4.  Finding  as  to  truth  of  allegations 
generally. — A  finding  that  all  of  the 
allegations  in  a  particular  paragraph  or 
pleading  are  true  or  untrue  is  sufficient: 
Heinrich  v.  Heinrich,  2  Cal.  App.  479, 
482,  84  Pac.  3?6,  (by  wife  against  hus- 
band, to  enforce  a  trust).  See,  also, 
Gale  v.  Bradbury,  116  Cal.  39,  40,  47 
Pac.  778,  (for  money  judgment) ;  Wil- 
liams v.  Hall,  79  Cal.  606,  607,  21  Pac. 
■965,  (upon  contract  for  the  payment  of 
money). 

5.  Remedy  where  findings  are  imper- 
fect.— An  imperlect  verdict  or  finding, 
or  a  neglect  to  find  on  all  the  •  issues, 
■can  be  taken  advantage  of  only  by 
motion  in  arrest  of  judgment:  Wells  v. 
Adams,  88  Mo.  App.  215,  228;  Grier  v. 
Strother,  111  Mo.  App.  386,  85  S.  W. 
976;  Jonesboro  etc.  R.  Co.  v.  United 
Iron  Works  Co.,  117  Mo.  App.  167,  94 
S.  W.  726;  Southern  Missouri  etc.  R. 
Co.  v.  Wyatt,  223  Mo.  347,  122  S.  W. 
688,   691. 

6.  VERDICT. — Defective  statement  of 
cause  cured  by. — A  defective  statement 
of  a  cause  of  action  may  be  good  after 
verdict:  H.  A.  Johnson  &  Co.  v.  Spring- 
field Ice  etc.  Co.,  143  Mo.  App.  441,  127 
S.   W.   692. 

7.  Presumptions  after  verdict. — Every 
reasonable  presumption  and  intendment 
should  be  indulged  from  the  facts  al- 
leged in  the  petition,  after  verdict,  and 
in  aid  thereof:  Thomasson  v.  Mercantile 
«tc.  I.  Co.,  217  Mo.  485,  116  S.  W.  1092, 
1096. 

For    additional    authorities    as    to    the 


foregoing  principle,  see  chapter  VIII,  an- 
notation paragraphs  18-21. 

8.  On  a  motion  for  a  directed  verdict, 
the  court  is  justified  in  denying  the 
same  if  a  substantial  conflict  exists  in 
the  evidence  on  any  material  issue: 
Gooler  v.  Eidness  (N.  Dak.),  121  N.  W. 
83,    85. 

9.  JUDGMENT  GEN  ERALLY.— Defi- 
nition.— Primarily,  a  "judgment,"  ex- 
cept where  the  signification  of  the  word 
has  been  changed  by  statute,  is  the 
decision  pronounced  by  the  court  upon 
the  matter  contained  in  the  record. 
Thus  it  has  frequently  been  held  that 
there  is  a  difference  between  a  judg- 
ment and  the  entry  thereof.  The  ren- 
dition of  a  judgment  is  a  judicial  act, 
and  the  entry  upon  the  record  is  purely 
ministerial.  Save  for  some  statute,  entry 
of  record  is  not  indispensable  to  a 
judgment;  but  it  is  just  as  clear  that  a 
judgment  is  essential  to  the  validity  of 
an  entry.  Under  the  old  practice,  and 
in  the  absence  of  statute,  it  seems  that 
there  was  a  radical  difference  between 
the  entries  of  judgments  and  decrees. 
A  "judgment"  can  speak  but  by  the 
record,  while  a  "decree"  takes  effect 
immediately  after  being  pronounced  by 
the  court.  Its  enrolment  adds  nothing 
to  its  force  or  its  competency  as  evi- 
dence: Burke  v.  Burke,  142  Iowa  206, 
119  N.  W.  129,  131,  citing  Freeman  on 
Judgments,  §  38;  Bates  v.  Delavan,  5 
Paige  303;  Winans  v.  Dunham,  5  Wend. 
47;  Butler  v.  Lee,  3  Keyes,  (42  N.  Y.) 
73;   Lynch  v.   Rome  Co.,   42  Barb.   591. 

10.  Iowa  statutes  relating  to  entry  of 
Judgment. — A  judgment  rendered  and 
entered  in  vacation  without  consent  of 
the  parties  or  an  order  of  court  entered 
during  term  time  is  void.  But  judg- 
ments and  decrees  ordered  and  rendered 
during  term  time  may  be  entered  in 
vacation:  Burke  v.  Burke,  142  Iowa  206, 
119  N.  W.  129,  citing  and  construing 
Iowa  code  §§  242,  247,  and  further  citing 
Traer  v.  Whitman,  56  Iowa  443,  9  N. 
W.  339;  Smith  v.  Cumins,  52  Iowa  143, 
2  N.   W.  1041. 

11.  Irregular     entry     of     decree The 

remedy  is  by  motion,  not  by  objection 
made  on  appeal,  where  a  decree  is  ir- 
regularly entered,  Inasmuch  as  that  fact 
does  not  render  the  decree  void:  Burke 
v.  Burke,  142  Iowa  206,  119  N.  W.  129, 
131,  citing  to  the  same  effect  Collins  v! 
Chantland,    48    Iowa   241;    State   v.    Hen- 


1884 


FINDINGS  AND  JUDGMENT. 


[Tit.  XV1L 


derson,  164  Mo.  347,  64  S  .W.  138,  86  Am. 
St.  Rep.  618. 

12.  Personal  judgment  is  not  valid 
against  non-resident. — Even  when  cita- 
tion and  notice  by  publication  in  the 
mode  provided  by  statute  is  given  to 
a  non-resident  defendant  who  does  not 
appear,  no  valid  personal  judgment  can 
be  rendered  against  him.  In  such  case, 
if  the  non-resident  defendant  has  prop- 
erty within  the  territorial  jurisdiction 
of  the  court,  the  same  may  be  reached 
by  attachment  and  proper  notice  by 
publication.  The  court  so  far  acquires 
jurisdiction  of  the  property,  as  a  pro- 
ceedings in  rem,  as  to  ascertain  the 
obligation  of  the  defendant,  and  to  ap- 
ply the  proceeds  of  the  attached  prop- 
erty in  satisfaction  of  the  same:  Pen- 
noyer  v.  Neff,  95  U.  S.  714,  24  L.  ed. 
565,  cited  in  Smith  v.  Montoya,  3  N. 
Mex.   40,   1  Pac.    175. 

13.  Judgment  upon  Issue  of  law  where 
unliquidated  damages  are  claimed. — As 
to  whether  the  demurrer,  for  its  own 
purpose,  admits  the  amount  of  damages 
alleged  in  the  bill  arising  from  the  al- 
leged violation  of  an  agreement;  held, 
that  the  Missouri  statute  (Rev.  Stats. 
1899,  §§  774-i  (6,  Ann.  Stats.  1906,  p. 
751)  contemplates  that  if  judgment  be 
rendered  on  demurrer,  on  an  issue  of 
law,  where  the  damages  can  not  be 
ascertained  by  the  written  instrument 
sued  on,  but  remain  unliquidated,  in- 
quiry should  be  had  into  the  amount  of 
the  damages:  Donovan  v.  Boeck,  217 
Mo.  70,  116  S.  W.  443,  546,  citing  Darrah 
v.  Steamboat  Lightfoot,  15  Mo.  187; 
McKenzie  v.  Mathews,   59  Mo.   99. 

14.  Joint  judgment  against  defendants 
guilty  of  tort. — In  actions  against  two 
or  more  persons  for  a  single  tort,  there 
can  not  be  two  verdicts  for  different 
sums  against  different  defendants  in  the 
same  trial.  There  can  be  but  one  ver- 
dict for  a  single  sum  against  all  who 
are  found  guilty  of  the  tort.  All  who 
are  guilty  at  all  are  liable  for  the  full 
amount  of  the  actual  damages  arising 
from  the  injuries  inflicted,  regardless  of 
the  degree  of  culpability:  Marriott  v. 
Williams,  152  Cal.  705,  711,  93  Pac.  875, 
125  Am.  St.  Rep.  87;  McCool  v.  Ma- 
honey,  54  Cal.  491;  Nichols  v.  Dunphy, 
58  Cal.  605;  Everroad  v.  Gabbert,  83  Ind. 
489;  Huddleston  v.  Borough,  111  Pa.  St. 
110,   2  Atl.   200. 

15.  Motion  in  arrest  of  Judgment. — 
The  office  of  a  motion  in  arrest  of  judg- 


ment is  to  direct  the  attention  of  the 
court  to  errors  apparent  on  the  face  of 
the  record  proper:  State  v.  Goehler,  193 
Mo.   177,    181,    91   S.   W.   947. 

16.  Motion  in  arrest. — When  defendant 
may  invoke. — A  motion  in  arrest  of 
judgment  is  a  remedy  which  the  defend- 
ant may  invoke  where  the  face  of  the 
petition  shows  plaintiff  not  to  have  a 
cause  of  action;  this  remedy  is  the 
counterpart  existing  in  favor  of  the  de- 
fendant of  the  remedy  by  motion  for 
judgment  non  obstante  veredicto,  which 
is  expressly  one  allowed  to  the  plaint- 
iff: Shearer  v.  Guardian  Trust  Co.,  136 
Mo.  App.  229,  116  S.  W.  456,  457. 

17.  Motion  in  arrest  for  defect  in  ver- 
dict.— Where  no  motion  in  arrest  of 
judgment  is  made  for  defect  in  the  ver- 
dict, such  defect  can  not  be  considered 
as  error  on  appeal:  Finney  v.  State  to 
use,  etc.,  9  Mo.  635;  Stout  v.  Calver,  6 
Mo.  256,  35  Am.  Dec.  438;  State  v.  De- 
Witt,  186  Mo.  61,  6S,  84  S.  W.  956; 
Southern  Missouri  etc.  R.  Co.  v.  Wyatt„ 
223  Mo.  347,  122  S.  W.  68S,  691,  (to  con- 
demn right  of  way  for  railroad). 

18.  A  motion  for  judgment  non  ob- 
stante veredicto  is  not  a  motion  al- 
lowed the  defendant  in  a  cause.  In 
point  of  legal  practice,  it  is  a  motion 
which  a  plaintiff  may  make  where,  on 
account  of  defendant's  answer,  he,  de- 
fendant, is  not  entitled  to  a  judgment 
in  his  favor.  It  is  only  proper  where, 
upon  the  defendant's  own  showing, 
in  any  way  of  putting  it,  he  can  have 
no  merits,  nor  can  the  issue  joined 
thereon  be  found  for  him.  Where  the 
awarding  of  a  repleader  can  not  mend 
the  case,  the  court  for  the  sake  of  the 
plaintiff  will  at  once  give  judgment  non 
obstante  veredicto:  Shearer  v.  Guardian 
Trust  Co.,  136  Mo.  App.  229,  116  S.  W. 
456,  457,  and  authorities  cited,  includ- 
ing Bellows  v.  Shannon,  2  Hill  (N.  Y.> 
86;  Bradshaw  v.  Hedge,  10  Iowa  402; 
Williams  v.  Anderson,  9  Minn.  50  (Gil. 
39) ;  Friendly  v.  Lee,  20  Ore.  202,  25  Pac. 
396;  Hurt  v.  Ford,  142  Mo.  283,  44  S. 
W.   228,  41  L.   R.   A.   823. 

19.  Motion  to  vacate  for  error  of  fact. 
— Missouri  practice. — In  the  state  of 
Missouri,  a  motion  to  vacate  a  judg- 
ment for  error  of  fact,  and  not  for 
patent  error  of  record,  supported  by 
evidence  dehors  the  record,  takes  the 
place  of  the  common-law  writ  of  error 
coram  nobis,  and  is  in  the  nature  of 
an    indictment    and    direct    attack    upon 


Ch.  CXLI.] 


ANNOTATIONS. 


1885 


the  judgment  of  the  court  committing 
the  error.  A  judgment  upon  such  a 
motion  is  within  it.self  a  final  judgment, 
from  which  an  appeal  will  lie.  A  trial 
court  will  not  be  compelled  by  mandate 
where  the  remedy  is  open  by  way  of 
appeal  from  an  order  overruling  the 
motion  to  vacate  a  judgment  of  dis- 
missal, voidable  only:  State  v.  Riley, 
219  Mo.  667,  118  S.  W.  647,  656. 

20.  Motion  to  vacate  a  judgment, 
charging  the  fact  of  death,  and  sup- 
ported by  proof,  takes  the  plXce  of  the 
common-law  writ  of  error  coram  nobis: 
State  v.  Riley,  219  Mo.  667,  US  S.  W. 
647,  651. 

21.  Judgment  upon  the  pleadings. — As 
a  general  proposition,  a  motion  for 
judgment  on  the  pleadings,  based  on 
the  facts  thereby  established,  can  not 
be  sustained  except  where,  upon  such 
facts,  a  judgment  different  from  that 
pronounced  could  not  be  rendered,  not- 
withstanding any  evidence  which  might 
be  produced;  or,  in  other  words,  such 
a  motion  can  not  be  sustained  unless, 
under  the  admitted  facts,  the  moving 
party  is  entitled  to  judgment,  without 
regard  to  what  the  findings  might  be  on 
the  facts  upon  which  issue  is  joined. 
Therefore,  in  determining  the  rights  of 
the  defendant  to  the  judgment  given 
him,  the  real  question  to  determine  is 
the  sufficiency  of  the  admitted  facts  to 
warrant  the  judgment  rendered  and  the 
materiality  of  those  on  which  issue  was 
joined.  A  motion  for  judgment  on  the 
pleadings  can  not  prevail  unless,  on 
facts  thereby  established,  the  court,  as 
a  matter  of  law,  can  pronounce  a  judg- 
ment on  the  merits;  that  is,  deter- 
mine the  rights  of  the  parties  to  the 
subject-matter  of  the  controversy,  and 
render  a  judgment  In  relation  thereto 
which  is  final  between  the  parties. 
Such  a  motion  can  not,  under  the  guise 
of  a  motion  for  judgment  on  the  plead- 
ings, be  substituted  for  some  other 
plea:  Mills  v.  Hart,  24  Colo.  505,  52  Pac. 
680,  65  Am.  St.  Rep.  241,  citing  Rice  v. 
Bush,  16  Colo.  484,  27  Pac.  720;  Harris 
v.  Harris,  9  Colo.  App.  211,  47  Pac.  841, 
approved  in  Hoover  v.  Horn,  45  Colo. 
288,  101  Pac.  55,  56,  and  in  Roberts  v. 
Colorado  Springs  etc.  R.  Co.,  45  Colo. 
188,   101   Pac.    59,    61. 

22.  Motion  not  substitute  for  de- 
murrer.— A  motion  for  judgment  upon 
the  pleadings  can  not  be  made  to  take 
the   place  of  a  demurrer  or  other  plea: 


Roberts  -f.  Colorado  Springs  etc.  R.  Co., 
45  Colo.  188,  101  Pac.  59,  61;  Shuler  v. 
Allan,    45   Colo.   372,    101   Pac.   350,   352. 

23.  A  motion  for  judgment  on  the 
pleadings  can  not  be  converted  into  a 
general  demurrer:  Schuler  v.  Allan,  45- 
Colo.  372,  101  Pac.  350,  352,  citing  Har- 
ris v.  Harris.  9  Colo.  App.  211,  47  Pac. 
841;  Mills  v.  Hart,  24  Colo.  505,  52  Pac. 
680,  65  Am.  St.  Rep.  241;  Rice  v.  Bush, 
16  Colo.  484,  27  Pac.  720;  Cornett  v. 
Smith,  15  Colo.  App.  53,  60  Pac.  953; 
Hoover  v.  Horn,  45  Colo.  288,  101  Pac. 
55. 

24.  Motion  admits  truth  of  pleas. — A 
motion  for  judgment  upon  the  pleadings 
admits  that  the  statements  in  the  pleas 
are  true:  Roberts  v.  Colorado  Springs 
etc.  R.  Co.,  45  Colo.  188,  101  Pac.  59,   61. 

25.  When  a  party  moves  for  judg- 
ment on  the  pleadings,  he  not  only,  for 
the  purpose  of  his  motion,  admits  the 
truth  of  all  the  allegations  of  his  adver- 
sary, but  also  must  be  deemed  to  adopt 
all  his  adversaries'  denials:  Phenix  v. 
Bijelich,  30  Nev.  257,  95  Pac.  351,  353, 
citing  Walling  v.  Bown,  9  Idaho  1S4,  72 
Pac.  960;  Idaho  P.  M.  Co.  V.  Green,  14 
Idaho    294,    Pac.    161,    164. 

26.  Motion  proper  when  denials  are 
only  of  conclusions. — A  judgment  on  the 
pleadings  is  proper  where  the  denials  in 
the  answer  are  only  of  conclusions,  and 
not  of  the  facts  constituting  the  plaint- 
iff's cause  of  action.  Denials  which 
relate  only  to  the  effect  of  such  facts 
are  immaterial:  Thompson  v.  Colvin,  53 
Ore.  488,  101  Pac.  201,  202,  citing  Bump 
v.   Cooper,   20  Ore.  527,   26  Pac.   848. 

27.  Relation  of  inconsistent  defenses 
to  the  motion. — Qn  a  motion  for  judg- 
ment on  the  pleadings,  inconsistent  de- 
fenses can  not  be  regarded  as  vitiating 
one  another;  but  if  a  good  defense  is 
stated  in  the  answer,  it  must  be  con- 
sidered as  true:  Hoover  v.  Horn,  45 
Colo.   288,   101  Pac.   55;  56. 

28.  Arizona  practice. — Judgment  on 
the  pleading  is  a  practice  recognized  by 
the  courts  of  Arizona:  Randall  v.  Fox 
(Ariz.),  108  Pac.  249,  250,  citing  Miles 
v.  McCallan,  1  Ariz.  491,  3  Pac.  610; 
Finley  v.  City  of  Tucson,  7  Ariz.  108, 
60   Pac.    872. 

29.  Waiver  of  motion. — A  motion  for 
judgment  on  the  pleadings  is  held  to 
be  waived  by  the  defendant  where  he 
goes  to  trial  on  the  merits:  Sundmacher 
v.  Lloyd,  135  Mo.  App.  517,  116  S.  W. 
12,   13. 


1886  COSTS,  EXECUTIONS,  AND  WRITS.  [Tit.  XVII. 


CHAPTER    CXLII. 

Costs,   Executions,  and   Writs. 

Page 

S  497.  Costs    1886 

Form  No.  1199.  Notice  requiring  security  for  costs 1886 

Form  No.  1200.  Notice   of   motion   to   stay   proceedings   until 

security  for  costs  be  given 1887 

Form  No.  1201.  Memorandum  of  costs  and  disbursements  on 

part  of  plaintiff  [or  defendant] 1887 

Form  No.  1202.  Verification  of  the  foregoing 1887 

Form  No.  1203.  Acknowledgment  of  service  of  a  copy  of  mem- 
orandum of  costs.  (Endorsed  upon  mem- 
orandum of  costs.) 18SS' 

§  498.  Writs  of  execution,  assistance,  etc 1888 

Form  No.  1204.  Writ  of  execution  on  judgment 1888 

Form  No.  1205.  Writ  of  execution.     (Corporation  as  judgment 

debtor.)    1889 

Form  No.  1206.  Sheriff's  return  of  execution  unsatisfied.  (An- 
nexed to  foregoing  writ.) 1890 

Form  No.  1207.  Sheriff's    return    of    execution    unsatisfied. — 

Property  claimed  by  third  person 1890 

Form  No.  1208.  Writ  of  execution  for  fees  and  costs 1891 

Form  No.  1209.  Writ  of  execution.     (On  certified  abstract  of 

judgment  of  justice's  court.) 1892 

Form  No.  1210.  Writ  of  execution  for  deficiency  on  fore- 
closure        1893 

Form  No.  1211.  Execution  against  real  or  personal   property 

in  the  hands  of  an  executor,  etc 1894 

Form  No.  1212.  Execution  upon  writ  of  restitution 1895 

Form  No.  1213.  Writ  of  execution  after  remittitur  filed 1896 

Form  No.  1214.  Writ  of  assistance   1897 

§  499.  Elements  of  petition  for  an  order  requiring  debtor  of  a  judgment 

debtor  to  appear  and  answer 1898 

§  500.  Annotations    1899 


§  497.     COSTS. 

FORM   No.  1199 — Notice  requiring  security  for  costs. 

[Title  of  court  and  cause.] 
To  A.  B.,  Attorney  for  plaintiff : 

Please  take  notice,  that  the  defendant  hereby  demands  and  re- 
quires security  from  E.  F.,  plaintiff,  who  is  a  non-resident  of  this 


•Ch.  CXLII.]  COSTS— FORMS.  1887 

state  [or  is  a  foreign  corporation],  for  defendant's  costs  and  charges 
in  this  action  which  may  be  awarded  herein  against  the  plaintiff. 
[Date.]  C.  D.,  Attorney  for  defendant. 

FORM   No.  1200 — Notice    of    motion    to    stay    proceedings    until    security   for 
costs  be  given. 

[Title  of  court  and  cause.] 

To  A.  B.,  Attorney  for  plaintiff: 

Please  take  notice,  that  defendant  will  move  said  court  at  the 
courtroom  thereof  on  the  day  of  ,  19     ,  at  o'clock 

M.,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  an  order 
staying  proceedings  in  this  action  until  plaintiff  give  security  to 
defendant  for  his  costs  and  charges  which  may  be  awarded  to  him  in 
the  action.  Said  motion  will  be  based  on  the  complaint  in  the  action, 
and  on  an  affidavit,  a  copy  of  which  is  herewith  served,  and  will  be 
made  on  the  ground  that  plaintiff  is  a  non-resident  of  this  state  [or  is 
a  foreign  corporation]. 

[Date.]  C.  D.,  Attorney  for  defendant. 

FORM   No.  1201 — Memorandum  of  costs  and  disbursements  on  part  of  plaint- 
iff [or  defendant]. 

[Title  of  court  and  cause.] 

Disbursements. 

Sheriff's  fees  $ 

Clerk's  fees $ 

Witnesses'  fees  [here  naming  the  witnesses  and 

designating  days  of  service] $ 

Reporter's  fees $ 

FORM   No.  1202 — Verification  of  the  foregoing. 
State  of 


County  of 

,  being  duly  sworn,  deposes  and  says :  That  he,  ,  is  the 

attorney  for  the  plaintiff  [or  defendant]  in  the  above-entitled  action, 
and,  as  such,  is  better  informed  relative  to  the  above  costs  and  dis- 
bursements than  the  plaintiff  [or  defendant]  ;  that  the  items  in  the 
above  memorandum  contained  are  correct,  to  the  best  of  this  depon- 


1888  COSTS,  EXECUTIONS,  AND  WRITS.  [Tit.  XVII. 

ent's  knowledge  and  belief,  and  the  said  disbursements  have  been 
necessarily  incurred  in  said  action. 

[Signature  of  affiant.] 
[Jurat  of  notary  or  clerk.] 

FORM   No.  1203 — Acknowledgment  of  service  of  a  copy  of  memorandum  of 
costs.     (Endorsed  upon  memorandum  of  costs.) 

Due  service  of  a  copy  of  the  within  memorandum  of  costs  is  hereby 
admitted  this  day  of  ,  19     . 

A.  B.,  Attorney  for 
[Endorsement  of  filing.] 

§498.     WRITS  OF  EXECUTION,  ASSISTANCE,  ETC. 
FORM   No.  ■*204 — Writ  of  execution  on  judgment. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  the  sheriff  of  the  county  of 

,  greeting: 

Whereas,  on  the  day  of  ,  19     ,  ,  plaintiff,  recov- 

ered a  judgment  in  the  superior  court  in  and  for  said  county  of 
,  state  aforesaid,  against  ,  defendant,  for  the  sum  of 

$  damages,  together  with  $  costs  and  disbursements  at 

the  date  of  said  judgment,  with  interest  on  said  sum  at  the  rate  of 
per  cent  per  from  date  of  said  judgment  until  paid,  as 

appears  to  us  of  record ; 

And  whereas,  the  judgment-roll  in  the  action  in  which  said  judg- 
ment was  entered  is  filed  in  the  clerk's  office  of  said  court  in  the 
county  of  ,  and  the  said  judgment  was  docketed  in  said  clerk's 

office  in  said  county,  on  the  day  and  year  first  above  written;  and 
the  sum  of  $  ,  as  aforesaid,  is  at  the  date  of  this  writ  actually 

due  on  said  judgment,  together  with  the  interest  thereon  as  afore- 
said, and  $  for  this  and  other  accruing  costs : 

Now  you,  the  said  sheriff,  are  hereby  required  to  make  the  said 
sums  due  on  said  judgment  for  damages  and  costs,  and  interest 
thereon  as  aforesaid,  and  accruing  costs,  to  satisfy  the  said  judg- 
ment, out  of  the  personal  property  of  the  said  debtor,  ;  or,  if 
sufficient  personal  property  of  said  debtor  can  not  be  found,  then 
out  of  the  real  property  in  your  county  belonging  to  , 
the  said  debtor,  on  the  day  whereon  said  judgment  was  docketed  in 
the  aforesaid  county,  or  at  any  time  thereafter,  and  make  return  of 


Ch.  CXLI1.J  WRITS.— FORMS.  1889 

this  writ  within  days  after  your  receipt  hereof,  with  what  you 

have  done  endorsed  hereon. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of  the  county 

of  ,  state  of  ,  at  the  courthouse  in  said  county  of  , 

this  day  of  ,  19     . 

Attest  my  hand  and  the  seal  of  the  said  court,  the  day  and  year  last 
above  written. 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsement  on  the  foregoing  writ:] 
Clerk's  fees  as  follows: 

This  writ    $ 

Docket  and  filing  $ 

Satisfaction $ 

Total  clerk's  fees  on  writ $ 

[Filing  endorsement.] 

FORM   No.  1205 — Writ  of  execution.     (Corporation  as  judgment  debtor.) 
(From  the  record  in  Nixon  v.  Goodwin,  3  Cal.  App.  358 ;  85  Pac.  169.) 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  California  to  the  sheriff  of  the  county  of 
Placer,  greeting: 

"Whereas,  on  the  5th  day  of  June,  1901,  John  Dias  recovered  a 
judgment  in  the  superior  court  in  and  for  the  county  of  Placer,  state 
of  California,  against  the  Montauk  Consolidated  Gold  Mining  Com- 
pany, a  corporation,  for  the  sum  of  $9,150,  with  interest  at  the  rate  of 
seven  per  cent  per  annum  from  the  date  of  said  judgment  till  paid, 
together  with  $6.75  costs  and  disbursements  at  the  date  of  said  judg- 
ment, and  accruing  costs  of  $1,  as  appears  of  record; 

And  whereas,  the  judgment-roll  in  the  action  in  which  said  judg- 
ment was  entered  is  filed  in  the  clerk's  office  of  said  court  in  the 
county  of  Placer;  and  the  said  judgment  was  docketed  in  said 
clerk's  office  in  the  said  county  on  the  day  and  year  first  above 
written ; 

And  the  sum  of  $9,157.75,  with  interest  at  the  rate  aforesaid,  is 
now,  and  at  the  date  of  this  writ  was,  actually  due  on  said  judg- 
ment: 

Now  you,  the  said  sheriff,  are  hereby  required  to  pay  the  said  sums 
due  on  the  said  judgment,  with  interest  as  aforesaid,  and  eosts  and 


1890  COSTS,   EXECUTIONS,  AND  WRITS.  [Tit.  XVII. 

accruing  costs,  to  satisfy  the  said  judgment  out  of  the  personal 
property  of  said  debtor;  or,  if  sufficient  personal  property  of  said 
debtor  can  not  be  found,  then  out  of  the  real  property  in  your  county 
belonging  to  said  debtor,  Montauk  Consolidated  Gold  Mining  Com- 
pany, a  corporation,  on  the  date  whereon  said  judgment  was  dock- 
eted in  the  said  county,  or  at  any  time  thereafter.  And  make  return 
of  this  writ  within  sixty  days  after  your  receipt  hereof,  the  date  of 
which  receipt  you  have  now  endorsed  hereon. 

"Witness  the  Hon.  J.  E.  Prewett,  judge  of  said  superior  court  in 
and  for  the  county  of  Placer,  state  of  California,  at  the  courthouse 
in  the  county  of  Placer,  this  5th  day  of  June,  1901. 

Attest  my  hand  and  the  seal  of  the  said  court,  the  day  and  year  last 
above  written. 

[Seal.]  J.  B.  Landis,  Clerk. 

[Return  endorsed:]  "Nulla  bona."     [See  form  No.  1206.] 

FORM   No.  1206 — Sheriff's    return    of    execution    unsatisfied.      (Annexed    to 
foregoing  writ.) 

(From  the  record  in  Nixon  v.  Goodwin,  3  Cal.  App.  358;  85  Pac.  169.) 

[Venue.] 

I,  Charles  Keena,  sheriff  of  the  county  of  Placer,  hereby  certify 
that  I  received  the  within  execution  on  the  5th  day  of  June,  1901, 
and  that,  after  due  search  and  diligent  inquiry,  I  have  been  unable 
to  find  any  property,  real  or  personal,  belonging  to  the  Montauk 
Consolidated  Gold  Mining  Company,  a  corporation,  upon  which  to 
levy  in  the  said  county  of  Placer,  and  I  hereby  return  the  within 
execution  wholly  unsatisfied. 

Dated  June  11,  1901. 

Charles  Keena,  Sheriff. 

By  William  I.  May,  Deputy  Sheriff. 

[Filing  endorsement.] 

FORM   No.  1207 — Sheriff's  return  of  execution  unsatisfied. — Property  claimed 
by  third  person. 

(In  Nixon  v.  Goodwin,  3  Cal.  App.  358 ;  85  Pac.  169.) 

[Title  of  court  and  cause.] 

I  hereby  certify,  that  on  the  5th  day  of  June,  1901,  I  received  the 
execution   in  the   above-entitled   action   hereunto   attached,   issued 


Ch.  CXLII.]  WRITS.— FORMS.  1891 

against  the  defendant  for  the  sum  of  $9,150,  with  interest  and  costs, 
duly  attested,  June  5,  1901;  that  on  the  6th  day  of  June,  1901,  I 
levied  upon  thirty-six  cords  of  mixed  oak  wood  upon  the  premises 
of  the  Montauk  Consolidated  Mine  in  El  Dorado  County,  Cali- 
fornia, and  in  the  possession  of  C.  H.  Mars;  that  thereafter,  on 
said  6th  day  of  June,  1901,  upon  instructions  given  to  me  by  the 
attorneys  for  the  plaintiff,  I  released  said  property  so  levied  upon, 
the  same  being  claimed  by  a  third  party. 

I  further  certify,  that  on  said  6th  day  of  June,  1901,  I  served  upon 
Edward  Goodwin,  the  superintendent  of  said  Montauk  Consolidated 
Gold  Mining  Company,  a  copy  of  said  execution  and  a  notice  to  the 
effect  that  the  property  belonging  to  the  said  defendant  corporation 
in  his  hands  or  under  his  control  was  levied  upon,  and  said  Goodwin 
on  said  day  made  answer  in  writing  certifying  that  he  had  no  money 
or  other  property  belonging  to  said  defendant  in  his  possession,  a 
copy  of  which  said  written  answer  of  said  Goodwin  is  hereunto 
attached  and  hereby  referred  to  and  made  a  part  of  this  return. 

I  further  certify,  that,  after  diligent  search,  I  am  unable  to  find 
any  personal  property  belonging  to  said  defendant  corporation  in 
El  Dorado  County,  California,  nor  have  I  been  able  to  find  any  real 
property  standing  of  record  in  the  name  of  said  defendant  in  said 
county,  and  I  therefore  return  the  attached  execution  wholly  unsat- 
isfied for  the  reasons  aforesaid. 

Dated  June  6,  1901.  A.  S.  Bosquit,  Sheriff. 

FORM    No.  1208 — Writ  of  execution  for  fees  and  costs. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  the  sheriff  of  the  county 

of  ,  greeting: 

Whereas,  in  a  certain  action  pending  in  the  superior  court  of  the 
county  aforesaid,  wherein  there  is  due  to  [here  naming  the  officer 
and  designating  his  official  character] ,  of  said  ,  from  ,  for 

fees  in  said  cause,  the  sum  of  $  ,  in  gold  coin  of  the  United 

States ; 

And  whereas,  by  virtue  of  section  38  of  an  act  to  regulate  fees  in 
office,  approved  March  5,  1870,  the  said   [officer]   is  authorized  to 


1892  COSTS,   EXECUTIONS,   AND   WRITS.  [Tit.  XVII. 

issue  execution  in  his  own  name  against  the  party  from  whom  fees 
may  be  due  for  services  rendered. 

These  presents  are  therefore  to  command  you,  that  of  the  goods 
and  chattels,  if  sufficient, — if  not,  then  of  the  lands  and  tenements, — 
of  the  said  ,  you  levy  and  cause  to  be  made  by  distress  and  sale, 

said  sum  of  $  ,  in  gold  coin  of  the  United  States,  fees  due  as 

aforesaid,  together  with  all  costs  that  may  accrue.    And  of  this  writ 
make  legal  service  and  return  in  days. 

Given  under  my  hand  and  seal,  this  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsements  on  the  foregoing  writ:] 
Clerk's  fees  as  follows : 

This  writ $ 

Satisfaction $ 

Total $ 

[Filing  endorsement.] 

FORM   No.  1209 — Writ  of  execution.      (On  certified  abstract  of  judgment  of 
justice's  court.) 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  the  sheriff  of  the  county  of 

,  greeting: 

Whereas,  on  the  day  of  ■,  19     ,  ,  plaintiff,  recov- 

ered a  judgment  in  the  court  of  ,  a  justice  of  the  peace  in  and 

for  township,  county  of  ,  state  of  ,  against  , 

for  the  sum  of  $  damages,  with  interest  at  the  rate  of  per 

cent  per  until  paid,  together  with  $  ,  costs  and  disburse- 

ments, at  the  date  of  said  judgment,  and  accruing  costs  amounting 
to  the  sum  of  $  ,  as  appears  to  us  of  record ; 

And  whereas,  a  duly  certified  abstract  of  said  judgment  was  on 
the  day  of  ,  19     ,  filed  in  the  clerk's  office  of  said  court, 

in  the  county  of  ,  and  the  said  judgment  was  docketed  in  said 

clerk's  office  in  the  said  county,  on  the  day  and  year  last  above 
written : 

And  the  sum  of  $  ,  with  interest  at  ,  is  now  at  the  date 

of  this  writ  actually  due  on  said  judgment ; 

Now,  you,  the  said  sheriff,  are  hereby  required  to  make  the  said 


Ch.  CXLII.]  WRITS.— FORMS.  1893 

sums  due  on  the  said  judgment  for  damages,  with  interest  as  afore- 
said, and  costs  and  accruing  costs,  to  satisfy  the  said  judgment,  out 
of  the  personal  property  of  the  said  debtor  ,  or,  if  sufficient 

personal  property  of  said  debtor  can  not  be  found,  then  out  of  the 
real  property  in  your  county  belonging  to  ,  the  said  debtor, 

on  the  day  whereon  said  judgment  was  docketed  in  the  aforesaid 
county,  or  at  any  time  thereafter.  And  make  return  of  this  writ 
within  days,  with  what  you  have  done  endorsed  hereon. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of  the  county 

of  ,  state  of  ,  at  the  courthouse  in  said  county  of  , 

this  day  of  ,  19     . 

Attest  my  hand  and  the  seal  of  said  court,  the  day  and  year  last 
above  written. 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsement  of  filing  and  of  name  of  attorney  obtaining  writ.] 

FORM   No.  1210 — Writ  of  execution  for  deficiency  on  foreclosure. 
[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  the  sheriff  of  the  county  of 

,  greeting: 

Whereas,  on  the  day  of  ,  19     ,  plaintiff  recovered  a 

judgment  in  the  said  superior  court  of  the  county  of  ,  state 

of  ,  against  ,  for  the  foreclosure  of  a  certain  mortgage, 

and  the  sale  of  the  mortgaged  premises  in  said  judgment  described, 
to  satisfy  the  sum  found  due  to  the  plaintiff  for  principal  and  inter- 
est, to  wit,  the  sum  of  $  ,  with  interest  from  the  date  of  said 
judgment  at  the  rate  of  per  cent  per  annum  till  paid,  together 
with  the  costs  and  expenses  of  sale,  as  appears  to  us  of  record,  in 
obedience  to  which  judgment  the  said  sheriff  sold  the  said  mort- 
gaged premises  and  applied  the  proceeds  of  sale  as  therein  directed, 
and  has  made  his  return  unto  said  court ;  that  there  is  a  deficiency  of 
such  proceeds  of  sale,  and  that  there  is  still  due  to  the  plaintiff  the 
sum  of  $  ,  bearing  interest  at  the  rate  of  per  cent  per 
annum  from  the            day  of            ,  19     ,  the  date  of  said  return; 

And  whereas,  the  judgment-roll  in  the  action  in  which  said  judg- 
ment was  entered  is  filed  in  the  clerk's  office,  in  the  said  court,  in 
the    county    of  ,    and    said    balance    or    deficiency,    on    the 

Jury's  PI.— 12a 


1894  COSTS,   EXECUTIONS,   AND   WRITS.  [Tit.  XVII. 

day  of  ,  19     ,  against  ,  the  judgment  debtor,  who 

by  said  judgment  is  made  personally  liable  therefor,  and  the  sum 
of  $  ,  with  interest  at  the  rate  of  per  cent  per  annum 

from  the  said  date  of  said  docketing,  are  now  actually  due  on  said 
judgment : 

Now,  you,  the  said  sheriff,  are  hereby  required  to  make  the  said 
sums  due  on  said  judgment,  with  interest  as  aforesaid,  and  costs  and 
accruing  costs  to  satisfy  the  said  judgment,  out  of  the  personal  prop- 
erty of  the  said  debtor,  ;  or,  if  sufficient  personal  property 
of  said  debtor  can  not  be  found,  then  out  of  the  real  property  in  your 
county  belonging  to  ,  the  said  debtor,  on  the  day  whereon 
said  judgment  was  docketed,  in  the  aforesaid  county,  or  at  any  time 
thereafter.  And  make  return  of  this  writ  within  days,  with 
what  you  have  done  endorsed  thereon. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of  the  county 

of  ,  state  of  ,  at  the  courthouse  in  said  county,  this 

day  of  ,  19     . 

Attest  my  hand  and  seal  of  the  said  court,  the  day  and  year  last 
above  written. 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsements  on  the  foregoing  writ:] 
Clerk's  fees  as  follows: 

This  writ    $ 

Satisfaction $ 

Total  clerk's  fees  on  writ $ 

Attest:  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsement  of  filing  and  of  name  of  attorney  obtaining  the 

writ.] 

FORM   No.  1211  —  Execution   against  real  or  personal   property  ir   the  hands 
of  an  executor,  etc. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  the  sheriff  [or  other  officer, 

designating  official  character]  of  the  county  of  : 

"Whereas,  a  judgment  was  rendered  on  the  day  of  ,  19    , 

in  the  court,  in  an  action  in  said  court  wherein 


Ch.  CXLIL]  WRITS.— FORMS.  1895 

was  plaintiff,  and  ,  as  executor  of  the  will  [or  as  the  admin- 

istrator of,  etc.]  of  ,  deceased,  [or  insert  other  description  of 

the  capacity  in  which  the  property  is  held,]  was  defendant,  in  favor 
of  said  plaintiff  and  against  said  defendant,  as  such  executor  [or 
administrator]  as  aforesaid,  for  the  sum  of  $  and  costs, 

upon  which  judgment  the  sum  of  $  ,  with  interest  thereon 

from  the  day  of  ,  19     ,  is  now  actually  due; 

[And  whereas,  an  order  of  the  probate  (or  surrogate)  of  the 
county  of  ,  from  whose  court  the  letters  testamentary 

under  said  will  (or  the  letters  of  administration  upon  said  estate) 
were  issued,  has  been  duly  made,  permitting  execution  to  be  issued 
upon  said  judgment  for  the  sum  of  $  .] 

And  whereas,  the  judgment-roll  upon  said  judgment  was  filed  in 

the  clerk's  office  of  the  county  of  ,  on  the  day  of 

,  19     ,  and  a  transcript  of  said  judgment  was  filed,  and  said 

judgment  was  duly  docketed,  in  the  office  of  the  clerk  of  your 

county  on  the  day  of  ,  19      : 

Now,  therefore,  you  are  hereby  required  to  satisfy  the  said  amount 
of  $  out  of  the  personal  [or  real,  or  real  and  personal]  prop- 

erty of  the  said  ,  in  the  hands  of  said  ,  as  such 

executor  [or  as  such  administrator],  in  your  county;  and  that  you 
return  this  execution  to  the  clerk  of  the  county  of  ,  within 

days  [stating  the  number  of  days  under  the  particular  statute] 
after  the  receipt  hereof. 

Witness  the  Hon.  ,  one  of  the  justices  [or  judges]  of  said 

court,  at  ,  on  this  day  of  ,  19     . 

[Endorsements,  etc.,  as  in  form  No.  1210.] 

FORM   No.  1212 — Execution  upon  writ  of  restitution. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  the  sheriff  of  County, 

greeting : 

Whereas,  a  judgment  was  rendered  in  the  superior  court  of  the 

county  of  ,  at  the  courthouse  thereof,  on  the  day  of 

,  19     ,  against  ,  in  favor  of  ,  for  the 

possession  of  certain  premises  described  therein,  and  also  for  the 

sum  of  $  damages,  and  the  sum  of  $  costs  of  suit : 


1896 


COSTS,   EXECUTIONS,   AND   WRITS. 


[Tit.  XVIL 


Now,  therefore,  these  are  to  command  you,  that  you  place  the 
said  in  quiet  and  peaceable  possession  of  the  said  premises 

described  in  said  judgment,  as  follows,  to  wit :     [Here  describe.] 

And  these  are  further  to  command  you,  that  of  the  goods  and 
chattels,  if  sufficient, — if  not,  then  of  the  lands  and  tenements, — of 
the  said  [naming  the  judgment  debtor]  you  levy  and  cause  to  be 
made  by  distress  and  sale  the  said  sum  of  $  damages  as  afore- 

said, and  the  said  sum  of  $  costs;  also,  together  with  all  costs 

that  may  accrue.    And  of  this  writ  make  legal  service  and  return  on 
the  day  after  your  receipt  hereof. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of  the  county 

of  ,  in  said  state,  this  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsement  of  filing  on  return  of  writ.] 


FORM   No.  1213 — Writ  of  execution  after  remittitur  filed 

[Title  of  court  and  cause.] 

The  people  of  the  state  of 
of  ,  greeting: 

day  of 


to  the  sheriff  of  the  county 


Whereas,  on  the 
of  the  state  of 
case  of  v 

the  county  of 


,  19     ,  the  supreme  court 
rendered  a  judgment  in  said  court  on  the 
,  on  appeal  from  the  superior  court  of 
in  favor  of  said  ,  and  the  remittitur 

from  said  supreme  court  having  been  filed  with  the  clerk  of  said 
superior  court,  and  said  having  filed  in  this  court  his 

memorandum  of  his  costs  of  said  appeal,  duly  verified,  amounting  to 
the  sum  of  $  ,  in  United  States  gold  coin,  and  accruing  costs, 

amounting  to  the  sum  of  $  ,  in  like  gold  coin,  as  appears  to  us 

of  record;  and  whereas,  the  sum  of  $  costs,  and  $  , 

accruing  costs,  as  aforesaid,  is  now  at  this  date  actually  due  on  said 
judgment,  amounting  in  all  to  $  : 

Now,  you,  the  said  sheriff,  are  hereby  required  to  make  the  said 
sums  due  on  said  judgment,  and  said  costs  and  accruing  costs,  to 
satisfy  the  said  judgment,  out  of  the  personal  property  of  the  said 
debtor  [here  naming  him]  ;  or,  if  sufficient  personal  property  of  said 
debtor  can  not  be  found,  then  out  of  the  real  property  in  your  county 


Ch.  CXLII.]  WRITS.— FORMS.  1897 

belonging  to  [said  debtor]  on  the  day  whereon  said  judgment  was 
docketed  in  the  aforesaid  county,  or  at  any  time  thereafter;  and 
make  return  of  this  writ  within  days  after  your  receipt  thereof, 

with  what  you  have  done  endorsed  thereon. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of  the  county 

of  ,  state  of  ,  at  said  court,  in  said  county  of  ,  this 

day  of  ,  19     . 

Attest  my  hand  and  seal  of  said  court,  the  day  and  year  last  above 
written. 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsements  on  the  foregoing  writ  of  execution :] 
Clerk 's  fees  as  follows : 

This  writ $ 

Docket  and  filing $ 

Satisfaction $ 

Recording  execution  and  return  of  sale .  .  $ 

Total  clerk's  fees  on  writ.- $ 

Attest:  ,  Clerk. 


By  ,  Deputy  Clerk. 


[Filing  endorsement.] 


FORM   No.  1214— Writ  of  assistance. 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  to  the  sheriff  of  County, 

greeting : 

Whereas,  the  application  of  for  a  writ  of  assistance  having 

been  submitted  on  the  day  of  ,  19     ,  upon  the  affidavit 

on  file  in  said  cause,  and  the  court  being  fully  advised  therein : 

It  is  ordered,  that  a  writ  of  assistance  issue,  placing  in 

the  possession  of  the  following-described  premises,  to  wit:  [Here 
follows  description.] 

Now,  therefore,  these  are  to  command  you,  the  said  sheriff,  that 
you  place  the  said  in  possession  of  the  said  hereinbefore- 

described  premises,  and  remove  said  defendant  from  said  premises 
and  every  part  thereof.  And  of  this  writ  make  legal  service  and 
due  return  within  days  after  your  receipt  of  the  same. 


1898  COSTS,   EXECUTIONS,   AND   WRITS.  [Tit.  XVII. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of  the  county 

of  ,  state  of  ,  and  the  seal  of  the  court,  this  day 

of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

[Endorsement  on  the  foregoing  writ:] 
Memorandum  of  costs : 

Accrued  costs $ 

This  writ $ 

Docketing  and  filing $ 

Satisfaction $ 

Total  clerk's  fees $ 

Attest : 

,  Clerk. 
By  ,  Deputy  Clerk. 

[Endorsement  of  filing  on  return  of  writ.] 


§499.     ELEMENTS  OF  PETITION   FOR  AN  ORDER   REQUIRING  DEBTOR 
OF  A  JUDGMENT  DEBTOR  TO  APPEAR  AND  ANSWER. 

[Title  of  court  and  cause.] 

1.  Introductory  part. 

2.  Statement  of  proceedings  in  the  action  between  the  petitioner 
and  judgment  debtor,  and  allegation  as  to  judgment  given  and  made 
against  said  judgment  debtor  and  in  favor  of  the  petitioner. 

3.  Issuance  of  execution  to  sheriff,  and  return  thereof  unsatisfied 
in  whole  or  in  part,  as  the  case  may  be. 

4.  Averment  that  is  a  debtor  of  said  judgment  debtor, 
and  prayer  that  such  alleged  debtor  may  be  cited  to  appear  before  a 
judge  or  referee,  at  a  time  and  place  certain,  to  answer  before  such 
judge  or  referee  concerning  any  debt  due  from  him,  said  debtor,  to 
said  judgment  debtor ;  and  prayer  that  such  debts  when  discovered 
and  properly  levied  upon  may  be  applied  to  the  satisfaction  of  said 
judgment. 

5.  Concluding  part. 


Ch.  CXLIL] 


ANNOTATIONS. 


1899 


§  500.     ANNOTATIONS.— Costs,  executions,  and  writs. 


1. 

2. 
3. 
4. 

5. 
6. 

7. 

8. 

9. 
10. 
11. 
12. 
13,  14. 
15. 
16. 
17. 
18. 
20. 
21. 
22. 
23. 
24. 
25. 
26. 
27 
28. 
29. 
30. 


19, 


Costs. — Statutory  limitation  of  right. 

What  statute  governs. 

Costs  in  equity  cases. 

In  divorce. 

In   foreclosure. 

Costs  where  partial  relief  is  granted. 

In  action  for  trespass. 

Counsel  fees  as  costs. 

Costs  where  action  abates. 

Statutory   costs. 

Unliquidated  demands. 

Costs  under  attachment. 

Counterclaim  as  affecting  costs. 

Premature  filing  of  cost-bill. 

Filing  after  statutory  time. 

Effect  of  modification  or  reversal. 

Writs. — Common-law  practice. 

Definitions  of  "writ"  and  "process." 

Discharge  of  improper  writs. — Reference. 

Writ  of  assistance. — Nature  of. 

Writ  as  summary  proceeding. 

Operation  of  writ. 

Writ  in   foreclosure. 

Writ  of  restitution  upon  judgment  in  ejectment. 

Remedy  of  party  removed  under  writ. 

Restoring  to  possession  after  reversal  of  judgment. 

Tenants  who  may  be  dispossessed  under  writ. 

Omce  of  writ  coram  nobis. 


1.  COSTS.  —  Statutory  limitation  of 
right. — The  only  limitation  upon  the  right 
of  a  prevailing  party  in  the  superior 
court  to  recover  the  costs  incurred, 
whether  recovery  be  for  a  whole  or  a 
portion  of  the  claim,  or  whether  the 
claim  be  made  up  of  one  or  several 
causes  of  action,  is  that  he  shall  re- 
cover $300  or  over.  Right  to  recover 
the  costs  is  purely  statutory,  and  in  ab- 
sence of  the  statute  no  costs  could  be 
recovered  by  either  party:  Fox  v.  Hale 
&  Norcross  S.  Min.  Co.,  122  Cal.  219, 
223,  54  Pac.  73.  (Under  the  California 
code,  the  minimum  amount  of  such 
court's  jurisdiction  being  the  sum  of 
$300.) 

2.  What  statute  governs. — Right  to 
recover  costs  is  purely  statutory,  and 
their  recovery  is  governed  by  the  stat- 
ute in  force  at  the  time  the  right  to 
have  them  taxed  occurs:  Begbie  v.  Beg- 
bie,  128  Cal.  154,  155,  60  Pac.  667,  49 
L.  R.  A.  141;  Williams  v.  Atchison  etc. 
R.  Co.,  156  Cal.  140,  141,  103  Pac.  885. 

3.  Costs  in  equity  cases. — In  equity 
cases  the  allowance  of  costs  is  within 
the  discretion  of  court,  and  such  discre- 
tion   will    not    be    reviewed    by    the    ap- 


pellate court  in  absence  of  the  state- 
ment or  bill  of  exceptions:  Faulkner  v. 
Hendy,  103  Cal.  15,  26,  36  Pac.  1021. 

4.  In  divorce  the  costs  rest  in  the  dis- 
cretion of  the  court:  Brenot  v.  Brenot, 
102  Cal.  294,  296,  36  Pac.  672. 

5.  In  foreclosure. — An  action  of  fore- 
closure being  equitable,  allowance  of 
the  costs  is  in  the  discretion  of  the 
court:  Irvine  v.  Perry,  119  Cal.  352,  357, 
51  Pac.  554,  949. 

6.  Costs  where  partial  relief  Is  granted. 
— Allowance  of  costs  does  not  depend 
upon  the  form  or  nature  of  the  action, 
but  rather  upon  the  fact  whether  the 
case  comes  within  the  terms  of  the 
statute.  Under  this  principle,  in  an 
action  to  quiet  title,  if  the  plaintiff 
recover  as  to  any  part  of  the  property 
involved,  and  judgment  runs  to  the 
defendant  for  the  remainder,  the  plaintiff 
is  entitled  to  costs:  Sierra  Union  W.  & 
M.  Co.  v.  Wolff,  144  Cal.  430,  433,  77  Pac. 
1038. 

7.  In  action  for  trespass. — In  an  action 
to  recover  damages  for  trespass  on  real 
property,  coupled  with  a  prayer  for  in- 
junction to  restrain  commission  of 
threatened    waste,     equitable    awarding 


isoo 


COSTS,   EXECUTIONS,  AND   WRITS. 


[Tit.  XVII. 


of  the  costs  is  not  controlled  by  the 
amount  of  damages  recovered:  Bem- 
merly  v.  Smith,  136  Cal.  5,  6,  68  Pac.  97. 

8.  Counsel  fees  as  costs  are  not  re- 
coverable by  a  successful  party  in  an 
action  at  law  or  in  equity,  except  where 
expressly  allowed  by  the  statute:  Estate 
of  Olmstead,  120  Cal.  447,  453,  52  Pac. 
S04.  See  Miller  v.  Kehoe,  107  Cal.  340, 
40  Pac.  485;  Bates  v.  Santa  Barbara 
County,  90  Cal.  543,   27  Pac.  438. 

9.  Costs  where  action  abates. — Costs 
are  but  a  part  and  incident  of  the  judg- 
ment. They  can  not  be  recovered  until 
a  judicial  determination  is  had  of  the 
action  in  which  they  have  been  in- 
curred, and  if  the  action  abate  and  the 
court  loses  power  to  render  judgment 
between  the  parties  upon  issues  before 
it,  it  is  equally  powerless  to  render  judg- 
ment for  the  costs  incurred  therein. 
When  an  action  abates  by  the  death  of  a 
party,  there  can  be  no  judgment  for 
costs  in  favor  of  the  survivor:  Begbie  v. 
Begbie,  128  Cal.  154,  155,  60  Pac.  667,  49 
L.   R.   A.   141. 

10.  Statutory  costs  in  each  of  the  con- 
solidated cases  may  be  recovered  not- 
withstanding the  consolidation:  Gray's 
Harbor  Boom  Co.  v.  McAmmant,  21 
Wash.   465,   58  Pac.   573. 

11.  Unliquidated  demands. — Costs  in 
an  action  upon  an  unliquidated  demand, 
which  defendant  pleaded  and  was  en- 
titled to  use  as  a  set-off,  are  recoverable 
by  the  plaintiff  in  a  subsequent  action 
where  the  defendant  denied  the  claim 
of  the  plaintiff  and  put  him  to  the  ex- 
pense of  establishing  it:  Milner  v.  Cam- 
den Lumber  Co.,  74  Ark.  224,  226,  85 
S.  W.   234. 

12.  Costs  under  attachment.  —  Costs 
under  a  valid  attachment  are  secured  by 
the  lien  of  the  attachment  the  same  as 
the  original  debt:  Bories  v.  Union  B.  & 
L.  Assn.,  141  Cal.   79,  74  Pac.   554. 

13.  Counterclaim  as  affecting  costs. — 
In  action  upon  a  money  demand,  where 
one  defendant  files  a  counterclaim,  and 
the  plaintiff  fails  to  recover  against 
him,  but  recovers  against  a  co-defend- 
ant, and  the  defendant  interposing  the 
counterclaim  fails  to  recover  thereon, 
Judgment  against  him  for  the  costs  is 
erroneous.  In  such  a  case  the  court  is 
allowed  no  discretion,  the  question  be- 
ing settled  by  statute  (Cal.  C.  C.  P. 
§  1024).  If  may  be  that  the  costs  were 
nearly  all  incurred  in  defending  against 
the  counterclaim,  but  even  then  statute 


does  not  authorize  the  court,  where 
plaintiff  fails  to  recover,  to  charge  the 
defendant  with  any  part  of  the  costs: 
Benson  v.  Braun,  134  Cal.  41,  42,  66 
Pac.  1. 

14.  The  defendant  is  entitled  to  re- 
cover his  costs  in  the  action  for  money 
or  the  damages  where  judgment  is  in 
his  favor,  and  it  does  not  change  the 
iule  that  judgment  be  in  his  favor  on 
counterclaim  for  a  nominal  sum:  Davis 
V.  Hurgren,   125  Cal.  48,  49,  57  Pac.  684. 

15.  Premature  filing  of  cost-bill. — The 
cost-bill  filed  before  the  filing  of  find- 
ings is  premature,  and  will  be  stricken 
out  on  motion:  Sellick  v.  DeCarlow,  95 
Cal.   644,   645,  20  Pac.   795. 

16.  Filing  after  statutory  time. — It  is 
a  settled  rule  in  California  that  if  the 
party  entitled  to  costs  neglects  to  serve 
and  file  his  memorandum  thereof  until 
more  than  five  days  have  elapsed  after 
he  has  knowledge  of  decision  of  court, 
though  no  notice  of  it  has  been  served 
upon  him,  the  filing  will  be  too  late,  and 
the  costs  will  be  stricken  out  on  mo- 
tion: Dow  v.  Ross,  90  Cal.  562,  563,  27 
Pac.  409.  See  Mallory  v.  See,  129  Cal. 
356,  360,  61  Pac.  1123. 

17.  Effect  of  modification  or  reversal. 
— Where,  in  the  exercise  of  its  discre- 
tion in  allowing  the  costs  in  equity 
cases,  the  court  taxes  against  each 
party  the  cost  of  maintaining  certain  is- 
sues, upon  reversal  of  judgment  upon 
one  of  such  issues  the  costs  should  be 
retaxed  accordingly:  Barthgate  v.  Ir- 
vine, 126  Cal.  135,  148,  58  Pac.  442,  77 
Am.   St.   Rep.   158. 

IS.  WRITS.  —  Common-law  practice. 
Under  the  old  English  practice,  there 
were  two  classes  of  writs, — original  and 
judicial.  The  original  writ  was  a  man- 
date of  the  court  constituting  the  foun- 
dation of  the  action  and  the  commence- 
ment of  a  legal  proceeding.  It  was 
served  upon  the  person  named  in  the 
writ,  and  required  his  appearance  in 
court,  or  the  performance  of  some  act 
designated  by  the  writ.  Writs  that 
were  issued  after  the  action  was  com- 
menced were  designated  judicial  writs, 
and  were  only  issued  out  of  the  court 
in  which  the  action  was  pending,  or 
which  issued  the  original  writ:  In  r« 
Damon,    104   Fed.   775,   777. 

(Under  the  code  system,  the  purpose 
of  the  original  writ  as  defined  above  is 
served  by  summons  or  citation,  while 
subsequent  processes,  comparable  to  ju- 


Cli.  CXLII.] 


ANNOTATIONS. 


1901 


diclal  writs  under  the  common  law,  are 
variously  designated  as  orders,  citations, 
processes,  or  writs  as  the  particular 
necessity  demands.)  For  the  various 
kinds  of  writs,  see  ch.  CXLII,  forms 
Nos.  1204-1214. 

19.  Definitions  of  "writ"  and  "proc- 
ess."— Under  the  Code  of  Civil  Pro- 
cedure of  the  state  of  California  (§  17, 
sub.  6),  the  word  "writ"  signifies  an 
order  or  precept  in  writing,  issued  in 
the  name  of  the  people,  or  of  a  court  or 
judicial  officer;  and  the  word  "process" 
a  writ  or  summons  issued  in  the  course 
of  judicial  proceedings. 

20.  A  writ  is  defined  as  "an  order  or 
precept  in  writing,  issued  by  a  court, 
clerk,  or  judicial  officer":  Gowdy  v. 
Sanders,  88  Ky.  346,  347,  quoting  and 
construing  subdivision  27  of  §  732  of  the 
Civil  Code  of  Practice. 

21.  Discharge  of  improper  or  irregu- 
lar issuance  of  writs  generally:  See 
Kohler  v.  Agassiz,  99  Cal.  9,  33  Pac.  741; 
Sparks  v.  Bell,   137  Cal.  415,  70  Pac.  281. 

22.  Writ  of  assistance. — Nature  of. — 
A  writ  of  assistance  is  a  summary  pro- 
ceeding resorted  to  under  the  rules  of 
chancery  practice  to  give  effect  to  the 
decree,  and  presupposes  that  the  rights 
of  the  parties  are  only  such  as  follow 
upon  the  decree  and  the  sale  had  pur- 
suant thereto.  If  those  rights  have  been 
changed  by  reason  of  an  agreement  sub- 
sequently entered  into,  so  that  the  issu- 
ance of  the  writ  might  work  injustice, 
it  should  be  withheld:  San  Jose  v.  Ful- 
ton, 45  Cal.  316,  319. 

23.  Writ  as  summary  proceeding. — A 
writ  of  assistance  is  a  summary  pro- 
ceeding which  a  plaintiff  may  some- 
times advantageously  avail  himself  of, 
but  is  not  res  adjudicata  as  to  any 
questions  which  may  arise,  and  a  right 
to  the  writ  does  not  deprive  a  party  of 
the  fuller  remedy  afforded  by  an  ordi- 
nary action:  Trope  v.  Kerns,  83  Cal. 
553,   23  Pac.   691. 

24.  Operation  of  writ. — A  writ  of  as- 
sistance relates  back  to  and  operates 
upon  those  rights  only  which  have  been 
determined  by  the  judgment:  Kirsch  v. 
Kirsch,  113  Cal.  56,  62,  45  Pac.  164. 

25.  Writ  in  foreclosure.— Writ  of  as- 
sistance is  a  proper  remedy  to  place  a 
mortgagee  who  has  purchased ,  under 
foreclosure  sale  in  possession  under  his 
deed;  it  runs  against  the  mortgagor  and 
all  persons  who  have  purchased  the  fee 
under    him    pendente    lite    with    notice: 


Hibernia  Sav.  &  L.  Soc.  v.  Lewis,  117 
Cal.  577,  580,  47  Pac.  602,  49  Pac.  714. 
See  Montgomery  v.  Tutt,  11  Cal.  190; 
Skinner  v.  Beatty,  16  Cal.  156;  Mont- 
gomery v.  Middlemiss,  21  Cal.  103,  81 
Am.  Dec.  146;  Frisbie  v.  Fogarty,  34 
Cal.  11;  Newmark  v.  Chapman,  53  Cal. 
557;  Sichler  v.  Look,  93  Cal.  600,  29 
Pac.  220. 

26.  Writ  of  restitution  upon  Judgment 
In  ejectment. — A  writ  of  restitution  may 
be  issued  on  a  judgment  in  ejectment 
after  the  death  of  the  plaintiff,  if  the 
judgment  was  rendered  in  his  lifetime, 
at  the  instance  and  for  the  benefit  of 
his  successor  in  interest;  and  if  issued 
and  served  in  the  name  of  the  deceased 
plaintiff,  although  irregular  in  point  of 
procedure,  if  it  is  correct  in  substance, 
defendants  will  not  be  restored  to  pos- 
session: Franklin  v.  Merida,  50  Cal. 
289,   293. 

27.  Remedy  of  party  removed  under 
writ. — A  party  removed  from  the  pos- 
session of  real  estate  under  a  writ  of 
restitution  issued  on  a  judgment  in 
ejectment  who  moves  to  be  restored  to 
possession  on  the  ground  that  he  was 
not  a  party  to  the  action  must  make 
out  a  clear  case,  and  one  free  from  am- 
biguity: California  Q.  S.  M.  Co.  v.  Red- 
ington,  50  Cal.  160,  161. 

A  person  wrongfully  turned  out  of 
possession  of  land,  under  a  writ  of  res- 
titution will  be  restored  by  the  court 
to  the  possession  on  motion:  South 
Beach  L.  Assn.  v.  Bergle,  41  Cal.  501,  504. 

28.  Restoring  to  possession  after  re- 
versal of  judgment. — Where  plaintiff  is 
placed  in  possession  under  judgment  of 
forcible  entry  and  detainer  by  a  writ  of 
restitution,  and  judgment  is  afterwards 
reversed  by  the  supreme  court,  the  court 
below  should  restore  the  defendant  to 
possession:  Polack  v.  Shafer,  46  Cal.  . 
270,  277;  Pico  v.   Cuyas,  48  Cal.  639,  642. 

29.  Tenants  who  may  be  dispossessed 
under  writ. — Persons  not  parties  to  a 
suit,  and  in  possession  before  it  was 
brought,  or  those  claiming  under  them, 
could  not  be  ousted  of  their  possession 
by  writ  of  restitution;  but  it  is  other- 
wise of  tenants  coming  in  under  the 
landlord  pending  the  suit:  Sampson  v. 
Ohleyer,   22  Cal.   200,   207. 

30.  Office  of  the  writ  of  coram  nobis 
is  to  bring  the  attention  of  the  court  to, 
and  obtain  relief  from,  errors  of  fact, 
such  as  the  death  of  either  party  pend- 
ing the  suit  and  before  judgment  there- 


1902 


NEW  TRIALS,  APPEALS,  ETC. 


[Tit.  XVIL 


in,  or  infancy,  where  the  party  is  not 
properly  represented  by  guardian,  or 
coverture,  where  the  common  law  dis- 
ability still  exists,  or  insanity,  it  seems, 
at  the  time  of  the  trial,  or  a  valid  de- 
fense existing  in  the  facts  of  the  case, 
but  which,  without  negligence  on  the 
part   of    the    defendant,    was    not    made. 


either  through  duress  or  fraud  or  excus- 
able mistake;  these  facts  not  appearing 
on  the  face  of  the  record,  and  being 
such  as,  if  known  in  season,  would  have 
prevented  the  rendition  and  entry  of  the 
judgment  questioned:  State  v.  Riley,  219 
Mo.  667,  118  S.  W.  647,  651,  quoting  from 
5   Ency.   PI.   &  Pr.   26,  27. 


CHAPTER   CXLIII. 

New  Trials,  Appeals  [and  Writs  of  Error]. 

Page 

§  501.  New  trials  1904 

Form  No.  1215.  Notice  of  intention  to  move  for  new  trial....  1904 
Form  No.  1216.  Notice  of  intention  to  move  for  a  new  trial, 

specifying  grounds  1904 

Form  No.  1217.  Notice  of  presentation  of  bill  of  exceptions  for 

settlement 1905 

Form  No.  1218.  Minute  order  denying  motion  for  new  trial...  1905 
Form  No.  1219.  Court  order  denying  motion  for  new  trial....  1906 
Form  No.  1220.  Conditional  order  granting  new  trial.    (Minute 

entry.) 1906 

Form  No.  1221.  Minute  entry  permitting  amendment  to  notice 
of  intention  to  move  for  new  trial,  and  deny- 
ing   motion    for    new    trial    upon    amended 

notice   1906 

Form  No.  1222.  Order   dismissing    motion    for   new   trial    for 

failure  to  prosecute 1907 

Form  No.  1223.  Notice   of  order   dismissing   motion   for   new 

trial 1907 

§  502.  Appeals  [and  writs  of  error]  in  state  courts 1908 

Form  No.  1224.  Writ  of  error.     (Hawaii  statutory  form.) 1909 

Form  No.  1225.  Notice  of  appeal  from  judgment 1911 

Form  No.  1226.  Notice  of  appeal  from  part  of  a  judgment 1912 

Form  No.  1227.  Notice   of   appeal   from   judgment   and   order 

denying  motion  for  new  trial 1912 

Form  No.  1228.  Notice  of  appeal  from  judgment  granting  in- 
sufficient relief    1912 

Form  No.  1229.  Notice  of  appeal  from  order  denying  motion 

for  new  trial 1913 

Form  No.  1230.  Notice  of  appeal  on  questions  of  both  law  and 
fact  from  justice's  court  to  superior  court. 

(California.)    1913 

Form  No.  1231.  Acknowledgment  of  service  of  notice  of  appeal  1914 
Form  No.  1232.  Affidavit  of  mailing  notice  of  appeal 1914 


Ch.  CXLIII.]  NEW  TRIALS,  APPEALS,  ETC.  ]!)<j;j 

8  503.  Undertakings  on  appeal 1915 

Form  No.  1233.  Undertaking  for  costs  and  damages  [or 
charges]  on  appeal.  (California,  Minnesota, 
Montana,  Nevada,  North  Dakota,  South  Da- 
kota, Utah,  Washington,  Wisconsin) 1915 

Form  No.  1234.  Justification    of    sureties    upon    undertaking. 

(Common  form.)    1915 

Form  No.  1235.  Acknowledgment     of     undertaking.        (Under 

statutes   requiring  acknowledgment.) 1916 

Form  No.  1236.  Undertaking  by  surety  corporation 1916 

Form  No.  1237.  Undertaking  on  appeal,  to  stay  execution  of 

money  judgment   1916 

Form  No.  1238.  Undertaking  on  appeal  from  judgment  direct- 
ing payment  of  money  in  instalments 1917 

Form  No.  1239.  Undertaking  where  judgment  directs  delivery 

of  documents  or  other  personal  property. . .     1918 
Form  No.  1240.  Undertaking  where  judgment  directs  sale  or 

delivery  of  real  property 1918 

Form  No.  1241.  Undertaking  where  appeal  is  had  from  order 

vacating  writ  of  attachment  or  injunction.  .     1919 

5  604.  Proceedings  for  writs  of  error  in  certain  state  courts 1919 

Form  No.  1242.  Writ  of  error  in  civil  action 1919 

Form  No.  1243.  Bond  for  costs  and  damages  on  writ  of  error 

in  civil  action   1920 

Form  No.  1244.  Supersedeas   bond   on   writ  of  error   in   civil 

action   1921 

Form  No.  1245.  Order   staying   proceedings 1921 

$  505.  Proceedings  for  writ  of  error  to  the  supreme  court  of  the  United 

States   1922 

Form  No.  1246.  Petition  for  writ  of  error 1922 

Form  No.  1247.  Assignment  of  error  on  petition  for  writ 1923 

Form  No.  1248.  Allowance  of  writ  of  error 1923 

Form  No.  1249.  Bond  on  writ  of  error .' 1924 

Form  No.  1250.  Oath  of  sureties  to  foregoing  bond 1924 

Form  No.  1251.  Approval  of  bond  (annexed  thereto) 1925 

Form  No.  1252.  Writ  of  error   1925 

Form  No.  1253.  Citation  upon  writ  of  error 1926 

i  506.  Miscellaneous  orders,  stipulations,  and  remittitur 1926 

Form  No.  1254.  Order  dispensing  with  undertaking  on  appeal 
from  judgment  or  order  denying  new  trial. 

(In  probate.)    1926 

Form  No.  1255.  Order  fixing  conditions  and  terms  of  under- 
taking on  appeal  from  an  intermediate 
order.  (North  Dakota,  South  Dakota,  Wis- 
consin.)         1927 

Form  No.  1256.  Waiver  of  undertaking  on  appeal 1928 

Form  No.  1257.  Waiver  of  undertaking  on  appeal,  and  of  de- 
posit in  lieu  thereof 1928 


1904  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

Form  No.  1258.  Stipulation  as  to  correctness  of  transcript  on 

appeal  and  undertakings  on  appeal  filed. . . .     1928 

Form  No.  1259.  Order  dismissing  appeal  1929 

Form  No.  1260.  Order  dismissing  appeal  from  order  denying 
motion  for  new  trial  for  failure  to  file  under- 
taking       !929 

Form  No.  1261.  Order  denying  motion  to  dismiss  appeal  from 

the  judgment 1929 

Form  No.  1262.  Provisional  order  affirming  judgment  on  appeal     1930 

Form  No.  1263.  Order  of  supreme  court  as  to  exhibits— Action 
to  quiet  title,  and  for  value  of  rents  and 
profits,  and  for  restitution  1930 

Form  No.  1264.  Stipulation    consolidating    various    causes    on 

appeal 1931 

Form  No.  1265.  Remittitur   1931 

§  507.  Annotations    1932 


§501.     NEW  TRIALS. 

FORM   No.  1215 — Notice  of  intention  to  move  for  new  trial. 

[Title  of  court  and  cause.] 

To  the  plaintiff  herein,  and  to  A.  B.,  his  attorney: 

You  will  please  take  notice,  that  the  defendant  in  the  above- 
entitled  action  intends  to  move  the  above-mentioned  court  to  set 
aside  the  findings  and  decision  in  said  action,  and  that  a  new  trial 
therein  be  granted  and  had. 

Said  motion  will  be  made  upon  the  grounds,  to  wit :  [Here  state 
the  grounds  upon  which  the  motion  will  be  based.] 

Said  motion  will  be  made  upon  a  statement  of  the  case  [or  a  bill  of 
exceptions],  hereafter  to  be  prepared,  [or  upon  the  minutes  of  the 
court,  or  otherwr-e,  as  the  statute  may  provide]. 

[Date.]  C.  D.,  Attorney  for  defendant. 

FORM  No.  1216 — Notice  of  Intention  to  move  for  a  new  trial,  specifying 
grounds. 

(In  Braly  v.  Fresno  City  R.  Co.,  9  Cal.  App.  417;  99  Pac.  400.) 

[Title  of  court  and  cause.] 

You  will  please  take  notice,  that  the  defendant  in  the  above-enti- 
tled action  intends  to,  and  will,  move  this  court  to  set  aside  and 
vacate  the  verdict  of  the  jury  in  this  action  and  to  grant  a  new  trial 
thereof. 


Ch.  CXLIII.]  NEW  TRIALS.— FORMS.  J 905 

The  said  motion  will  be  made  on  the  following  grounds  and  for 
the  following  causes,  to  wit: 

1.  Insufficiency  of  the  evidence  to  justify  the  verdict  of  the  jury. 

2.  That  said  verdict  of  the  jury  is  against  law. 

3.  Errors  in  law  occurring  at  the  trial  and  excepted  to  by  the 
defendant. 

The  said  motion  will  be  made  upon  a  statement  of  the  case  here- 
after to  be  prepared,  certified,  allowed,  settled,  and  filed. 
Dated  April  21,  1907.  Everts  &  Ewing, 

F.  E.  Cook, 

Attorneys  for  defendant. 

To  said  plaintiff,  and  to  L.  L.  Cory  and  M.  K.  Harris,  attorneys 
for  plaintiff. 

[Admission  of  service.] 

Due  service  of  the  foregoing  notice  and  receipt  of  a  copy  thereof 
are  hereby  acknowledged,  this  20th  day  of  April,  1907. 

L.  L.  Cory,  and 
M.  K.  Harris, 

Attorneys  for  plaintiff. 

FORM   No.  1217 — Notice  of  presentation  of  bill  of  exceptions  for  settlement. 

[Title  of  court  and  cause.] 

You  are  hereby  notified,  that  the  defendant  will,  on  the  day  of 

,19     ,  at  o'clock      M.,  present  to  the  Hon.  , 

judge  of  said  court,  at  his  chambers,  defendant's  proposed  bill  of 
exceptions,  and  plaintiff's  proposed  amendments  thereto,  for  settle- 
ment and  allowance.  c  D>)  Attorney  for  defendant. 

To  A.  B.,  Attorney  for  plaintiff. 

FORM   No.  1218 — Minute  order  denying  motion  for  new  trial. 

(In  Noyes  v.  Schlegel,  9  Cal.  App.  516;  99  Pac.  726.) 

[Title  of  court  and  cause.]  June  12,  1908. 

In  this  cause  the  defendant,  L.  Schlegel,  moved  for  a  new  trial  on 
the  following  grounds,  to  wit:     [Here  the  grounds  are  stated.] 

Said  motion  was  submitted  for  ruling  thereon  by  the  court ;  where- 
fore, it  is  ordered  that  the  motion  for  a  new  trial  be  and  the  same  is 
hereby  denied. 


1906  NEW  TRIALS,  APPEALS,  ETC.  '        [Tit.  XVII. 

FORM   No.  1219 — Court  order  denying  motion  for  new  trial. 

(In  Ellsworth  v.  Knowles,  8  Cal.  App.  630;  97  Pac.  690.) 

[Title  of  court  and  cause.] 

Defendant's  motion  for  new  trial  herein  having  been  heretofore 
submitted  to  the  court  for  consideration  and  decision,  and  the  court, 
being  informed  in  the  premises,  now  orders  that  said  motion  be  and 
the  same  is  hereby  denied. 

In  open  court,  December  30,  1907.  A.  L.  Rhodes, 

Judge  of  Superior  Court. 

FORM   No.  1220 — Conditional  order  granting  new  trial.     (Minute  entry.) 
(In  Swett  v.  Gray,  141  Cal.  63;  74  Pac.  439.)  1 

[Title  of  court  and  cause.]  May  4,  1901. 

The  motion  of  defendant  for  a  new  trial,  on  the  grounds  set  forth 
in  his  statement  on  said  motion,  and  the  amendments  thereto,  came 
on  to  be  heard  this  4th  day  of  May,  1901,  and  upon  the  court's  con- 
sideration thereof: 

It  is  ordered,  that  a  new  trial  be  granted  unless  within  ten  days  the 
plaintiff,  in  writing,  remits  all  of  the  judgment  in  excess  of  $5,000; 
and  if  plaintiff  shall  remit  the  sum  of  $8,300  from  the  judgment 
within  ten  days,  then,  and  in  that  case,  the  motion  for  a  new  trial 
will  be  denied. 

FORM  No.  1221 — Minute  entry  permitting  amendment  to  notice  of  intention 
to  move  for  new  trial,  and  denying  motion  for  new  trial 
upon  amended  notice. 

(In  Clapp  v.  Vatcher,  9  Cal.  App.  462;  99  Pac.  549.) 
Minutes  Superior  Court,  Feb.  10,  1908. 
[Title  of  court  and  cause.] 

Defendant's  motion  to  amend  a  notice  of  intention  to  move  for  a 
new  trial  is  granted  and  amendment  made. 

i  From  this  order  the  plaintiff  appeals  from  that  part  and  portion  thereof  which 
provides  that  if  plaintiff  shall  remit  the  sum  of  $8,300  from  said  judgment  within 
ten  days  from  the  date  of  said  order,  then,  in  that  event,  the  motion  for  a  new 
trial  will  be  denied.  Plaintiff  on  the  appeal  asks  "if  the  judgment  be  affirmed,  that 
this  [supreme]  court  designate  and  fix  in  its  judgment  and  decision  a  reasonable 
time  within  which  plaintiff  may,  if  she  shall  desire  so  to  do,  make  such  remission 
as  specified  in  said  order  of  the  said  superior  court":  held,  that  such  appeal  was,  in 
effect,  a  refusal  by  plaintiff  to  remit  any  portion  of  the  judgment  or  abide  by  the 
terms  of  the  order,  and  was  an  exercise  of  the  plaintiff's  option;  further,  that  an 
appeal  should  not  be  permitted  on  the  assumption  that  plaintiff  has  all  to  gain  and 
nothing  to  lose  by  the  course  taken,  the  order  being  therefore  affirmed:  Swett  v. 
Gray,  141  Cal.  63,  70,  74  Pac.  439. 


Ch.  CXLIIL]  NEW  TRIALS.— FORMS.  1907 

Motion  for  a  new  trial  made  upon  the  ground  set  forth  in  the 
notice  of  intention  is  presented,  and  a  new  trial  is  denied  defendant, 
to  which  ruling  defendant  duly  excepts. 


FORM   No.   1222 — Order  dismissing  motion  for  new  trial  for  failure  to  prose- 
cute. 

(In  McFarland  v.  Matthai,  7  Cal.  App.  599;  95  Pac.  179.) 

[Title  of  court  and  cause.] 

The  motion  of  the  above-named  plaintiff  for  an  order  of  this  court 
to  dismiss  the  motion  of  the  above-named  defendant  for  a  new  trial 
herein,  for  failure  of  the  defendant  to  prosecute  the  said  motion  for 
a  new  trial,  coming  on  regularly  to  be  heard  this  24th  day  of  April, 
1905,  Messrs.  Bell,  York  &  Bell  appearing  on  behalf  of  the  defend- 
ants, and  it  appearing  to  the  court  that  due  notice  of  this  motion  to 
dismiss  was  duly  and  regularly  served  on  *  *  *  the  attorneys 
for  the  defendants  herein,  and  it  further  appearing  that  the 
defendants  have  failed  to  prosecute  the  said  motion  for  a  new 
trial,  and  have  failed  and  neglected  to  have  the  proposed  state- 
ment on  motion  for  a  new  trial  settled  and  approved  by  this  court, 
and  have  abandoned  the  motion  for  a  new  trial,  and  the  said  pro- 
posed statement  for  the  motion  for  a  new  trial,  for  a  period  of  three 
and  one-half  years,  and  all  and  singular  the  law  and  premises  being 
by  the  court  understood  and  considered,  wherefore : 

It  is  hereby  ordered,  that  the  motion  of  the  defendant  for  a  new 
trial  in  the  above-entitled  action,  together  with  the  proposed  state- 
ment and  amendments  thereto,  are,  and  each  of  them  is,  hereby  dis- 
missed. 

Done  in  open  court,  this  24th  day  of  April,  1905. 

Henry  C.  Gesford, 
Judge  of  the  Superior  Court. 


FORM   No.  1223 — Notice  of  order  dismissing  motion  for  new  trial. 

(In  McFarland  v.  Matthai,  7  Cal.  App.  599;  95  Pac.  179.) 

[Title  of  court  and  cause.] 

To  Theisen  &  Jung,  Attorneys  for  the  defendant : 

Please  take  notice,  that  on  the  24th  day  of  April,  1905,  in  the 
above-entitled  court  and  action,  an  order  was  duly  made  and  entered 


2908  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

dismissing  the  motion  of  the  defendant  for  a  new  trial  in  the  above- 
entitled  action,  and  also  the  defendant's  proposed  statement  on 
motion  for  a  new  trial,  a  true  copy  of  which  order  is  hereby  annexed. 

Bell,  York  &  Bell, 
Attorneys  for  the  defendant. 
[Copy  of  order  annexed,  as  same  appears  in  form  No.  1222.] 

Form  of  statement  upon  motion  for  a  new  trial:    Harris  v.  Kellogg,  117  Cal.   484, 
49  Pac.  708. 


§502.     APPEALS  [AND  WRITS  OF  ERROR]   IN  STATE  COURTS. 
[References  to  Statutes.] 

Alaska:  Appeals  and  writs  of  error  generally,  Ann.  Code  C.  C.  P. 
1907  (Carter),  §504  et  seq. ;  laws  regulating  appeals  and  writs  of 
error  are  generally  the  same  as  those  obtaining  in  the  federal  courts, 
§508. 

Arizona:  Appeals  and  writs  of  error  generally,  Rev.  Stats.  1901, 
fl  1493  et  seq. ;  petition  for  writ  of  error,  fl  1499 ;  bonds,  flfl  1501,  1506 ; 
supersedeas,  flfl  1510-1513 ;  summons  in  error,  fl  1502. 

Arkansas:  Appeals  and  writs  of  error  generally,  Dig.  of  Stats. 
1904  (Kirby),  §§1189-1201;  parties,  §1202  et  seq.;  supsedeas, 
§§  1216-1221;  trial  and  determination,  §§  1223-1242. 

California:  Appeals  in  general,  C.  C.  P.  §936  et  seq.;  notice, 
§940;  undertakings,  §§941-945;  alternative  method  of  appeals, 
§§941a-941c;  stay  of  proceedings,  §§946,  949;  undertakings  in  one 
instrument,  §  947 ;  papers  on  appeal,  §  950  et  seq. ;  hearing  and 
determination,  §  954  et  seq. ;  appeals  to  supreme  and  district  courts 
of  appeal  generally,  code  amendments  C.  C.  P.  1880,  p.  14,  adding 
new  chapters,  superseding  chapter  II,  part  II,  title  XIII,  as  the  same 
appears  in  the  published  codes. 

Colorado:  Appeals  to  supreme  court  generally,  Rev.  Stats.  1908, 
§§422,  441;  bond,  §§422,  430;  supersedeas,  §437;  scire  facias, 
§§439,  440. 

Hawaii:  Appeals  and  error  generally,  §1858  et  seq.;  bonds, 
§  1859 ;  arrest  of  judgment,  §  1861 ;  writ  of  error,  §  1874 ;  cost  bond 
upon  writ  of  error,  §  1876 ;  form  of  writ  of  error,  §  1879,  as  follows : 


Ch.  CXLIII.]  APPEALS.  1909 

FORM   No.  1224 — Writ  of  error.     (Hawaii  statutory  form.) 

Supreme  court  of  the  territory  of  Hawaii. 
A.  D.,  plaintiff  In  error. 


E.  H.,  defendant  in  error. 

To  M.  N.,  Clerk,  etc.  [of  the  court  addressed]: 

Whereas,  in  an  action  pending  before  the  court  for  the  Judicial  circuit. 

In  which  was  plaintiff,  and  defendant,  error  is  alleged  to  have  occurred, 

as  appears  by  the  assignment  of  errors  on  file  in  this  court.  You  are  commanded 
forthwith  to  send  up  to  this  court  the  record  and  all  exhibits  filed  in  said  pro- 
ceedings. 

Witness  the  Hon.  ,  Chief  Justice  of  the  Supreme  Court. 

R.  T.,  Clerk. 

Idaho:  Notice  of  appeal,  Rev.  Code  C.  P.  1908,  §  4808;  undertak- 
ing, §4809;  supersedeas,  §4810;  stay  of  proceedings,  §§4814,  4817; 
undertakings  in  one  instrument,  §  4815 ;  papers  on  appeal,  §  4818 
et  seq. 

Iowa :  Appeals  from  orders,  Code  1897,  §  4101 ;  intermediate 
orders,  §  4103 ;  motion  to  correct  error,  §  4105 ;  review  in  the  supreme 
court,  §  4107 ;  notice,  §  4114 ;  abstracts  of  the  record,  §  4118 ;  tran- 
scripts, §  4122 ;  supersedeas  bonds,  §  4128 ;  bonds  and  security, 
§§  4132-4135. 

Kansas:  Error  in  civil  cases,  Gen.  Stats.  1905  (Dassler),  §5465 
et  seq. ;  parties,  §  5468 ;  parties  to  case-made  and  error  proceedings, 
§5468;  summons  on  petition  in  error,  §§5477,  5478;  case-made, 
§§  5480-5482;  stay  and  supersedeas  bond,  §  5485;  undertakings  gen- 
erally, §§5486-5489;  bond  to  stay  execution,  §5502;  vacating  and 
modifying  judgments  and  orders,  §§  5503-5515. 

Minnesota:  Appeals  generally,  Rev.  Laws  1905,  §3457  et  seq.; 
notice,  §4359;  bond  for  costs,  §4366;  supersedeas,  §§4367,  4368; 
delivery  of  chattels,  or  directing  conveyances,  §§4369,  4370;  super- 
sedeas where  sale  of  real  property  is  directed,  §  4371 ;  stay  of 
proceedings,  §  4372;  bond  to  vacate  stay,  §§  4374,  4375. 

Missouri:  Appeals,  when  granted,  Ann.  Stats.  1906,  §806;  par- 
ties, §  807 ;  time,  §  808 ;  bond  to  stay  execution,  §§  809,  810,  849 ;  costst 
§  813 ;  writ  of  error,  §  835 ;  stay  of  execution  thereon,  §  849 ;  cross 
appeals,  §  876. 

Montana:  Undertaking  on  appeal  generally,  C.  C.  P.  1895, 
§  1725;  to  stay  execution,  §  1726;  undertaking  where  the  judgment 
directs  the  delivery  of  documents,  etc.,  §  1727 ;  or  the  execution  of 
a  conveyance,  §  1728;  or  the  sale  or  delivery  of  possession  of  real 

Jury's  PL— 121. 


1<J10  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

property,  §  1729 ;  undertaking  to  stay  proceedings,  §  1730 ;  several 
undertakings  in  one  instrument,  §  1731. 

Nebraska:  Petition  in  error,  Comp.  Stats.  Ann.  1907,  §7156; 
summons  in  error,  §  7157 ;  stay  of  execution  and  undertakings, 
§§  7164-7167,  7169;  proceedings  in  district  courts  to  vacate  or  modify 
judgments  in  such  courts,  §§7179-7188;  security  for  costs,  §§  7189- 
7193. 

Nevada:  Appeals  in  general,  Comp.  Laws  (Cutting),  §3422  et 
seq. ;  notice,  §3426;  statement  on  appeal,  §§3427-3431;  appeals  on 
affidavit,  §3432;  undertakings,  §§3436-3441;  undertakings  one  or 
several,  §  3442 ;  affidavit  of  sureties  to  undertaking,  §  3443. 

New  Mexico:  Appeals  generally,  Comp.  Laws  1897,  §  3136  et 
seq.;  trials  de  novo  on  appeal,  §  2897;  writs  of  error,  §§  3144,  3146; 
bond,  §§  3144,  3145;  record  on  appeal,  §  3147. 

North  Dakota:  Appeals  generally,  Rev.  Stats.  1905,  §7202  et 
seq. ;  notice,  §  7205 ;  deposit,  §  7207 ;  undertaking,  §  7208 ;  stay  of 
proceedings,  §§7209,  7210;  stay  of  execution,  §§7211-7213;  inter- 
mediate orders,  §  7216,  7226 ;  undertakings  as  to  appeals  from  orders 
on  provisional  remedies,  §  7217 ;  sureties,  §  7221. 

Oklahoma:  Error  in  civil  cases  generally,  Comp.  Laws  1909 
(Snyder),  §  6066  et  seq.;  case-made,  §§  6073-6077;  stay  of  execution, 
§§  6078-6081;  stay  on  judgment  or  order,  §§  6083,  6084. 

Oregon:  Appeal  generally,  Codes  &  Stats.  1902  (Bel.  &  Cot.), 
§  547  et  seq. ;  undertaking,  §§  550-552;  transcript,  §§  553,  554. 

South  Dakota:  Appeals  generally,  Rev.  C.  C.  P.  1903,  §439  et 
seq.;  notice,  §441;  deposit  in  lieu  of  undertaking,  §444;  undertak- 
ing, §  445 ;  stay  of  execution,  §  446 ;  stay  of  proceedings  on  certain 
classes  of  judgments,  §§447-452;  appeals  from  intermediate  orders, 
§  453;  undertaking  on  appeals  from  provisional  orders,  §§  454,  455; 
undertakings  in  one  instrument,  §457;  review  and  determination, 
§§  462-465. 

Texas:  Writ  of  error  generally,  Civ.  Stats.  1897  (Sayles),  Art. 
1391 ;  error  bond,  §  1393 ;  citation  in  error,  §  1394 ;  form  of  citation, 
§1394;  return  of  citation  in  error,  §1395;  cost  bond  on  appeal, 
§  1400;  supersedeas  bonds,  §§  1404,  1405. 

Utah:  Appeals  in  general,  Comp.  Laws  1907,  §  3300  et  seq. ;  notice, 
§3305;  undertakings,  §§  3306-3312x;  stay  of  proceedings,  §§3313- 
3315;  perfecting  of  appeal,  hearing,  and  disposition,  §§  3316-3322. 


Ch.  CXLIII.]  NOTICES   OF  APPEAL.— FORMS.  1911 

Washington:  Appeals  to  the  supreme  court  generally,  Rem.  & 
Bal.  Code  1910,  §  1716  et  seq.;  notice  of  appeal,  §§  1719,  1720;  bond 
for  costs,  §§  1721,  1722;  hearing,  etc.,  §  1734  et  seq. 

Wisconsin:  Writ  of  error  generally,  Stats.  1898  (San.  &  Ber.), 
§  3043 ;  bond  on  writ  of  error,  §  3044 ;  bond  to  stay  execution,  §  3045. 
Besides  appeals  from  judgments  and  orders,  appeals  may  embrace 
two  or  more  appealable  orders,  or  the  part  of  such  orders,  or  either 
of  them  (§  3049).  Bonds  on  appeal:  See  §§  3052-3067;  or  deposit,  in 
lieu  of  undertaking,  §  3051. 

The  Wisconsin  statute  provides  for  appeals  from  interlocutory  decrees  subject  to 
the  same  limitations  as  from  final  judgment:  Wis.  Stats.  Supp.  1899-1906  (San.  & 
San.),  §3047. 

Wyoming:  Appeals  in  general,  Rev.  Stats.  1899,  §4397  et  seq.; 
notice  and  bond,  §  4398;  stay  of  execution,  §§  4403,  4404;  undertak- 
ing, §  4408;  transcript,  hearing,  and  disposition,  §§  4409-4415. 


FORM   No.  1225 — Notice  of  appeal  from  judgment. 

(In  O'Brien  v.  Big  Casino  G.  M.  Co.,  9  Cal.  App.  283;  99  Pac.  209.) 

[Title  of  court  and  cause.] 

To  the  plaintiff  in  the  above-entitled  action,  and  to  E.  W.  Holland, 
Esq.,  his  attorney : 

Please  take  notice,  that  the  defendant  in  the  above-entitled  action 
hereby  appeals  to  the  [district  court  of  appeals  of  the  third  appellate 
district]  of  the  state  of  [California]  from  the  judgment  made  and 
entered  in  said  [superior]  court  in  the  above-entitled  action  on  the 
[19th  day  of  August,  1907] ,  in  favor  of  the  plaintiff  in  said  action  and 
against  the  defendant  [for  the  sum  of  $  ,  damages  and  costs] , 

and  from  the  whole  thereof. 

Dated  February  19,  1909.  F.  W.  Street, 

Attorney  for  defendant. 

[Admission  of  service  annexed.] 

The  foregoing  form  is  in  substance  generally  applicable  to  an  appeal  from  an 
entire  judgment,  where  the  statute  provides,  as  in  California,  that  the  notice  shall 
state  that  the  defendant  (or  plaintiff)  appeals  to  the  suprerue  court  (or  other  court 
of  appeal)  from  a  judgment  (designating  its  nature  briefly  and  giving  the  date  and 
place  of  its  making  and  entry)  in  favor  of  plaintiff  (or  defendant,  as  the  case  may 
be)  and  against  the  defendant  (or  plaintiff),  and  from  the  whole  thereof.  (Follow- 
ing with  subscription  and  date.) 


1912  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVIL 

FORM   No.  1226— Notice  of  appeal  from  part  of  a  judgment. 

[Title  of  trial  court  and  cause,  naming  all  parties.] 

To  A.  B.,  attorney  for  plaintiff,  and  to  L.  M.,  clerk  of  the  afore- 
said court: 

Please  take  notice,  that  ,  defendant  above  named,  hereby 

appeals  to  the  supreme  court  of  the  state  of  from  that  part 

of  the  judgment  rendered  by  the  above-named  court,  and  herein 
entered,  on  the  day  of  ,  19     ,  in  favor  of  the  plaintiff 

and  against  this  defendant,  which  adjudges  that  [here  specify  the 
part  of  the  judgment  appealed  from]. 

[Date.]  C.  D.,  Attorney  for  defendant. 

[Admission  or  proof  of  service  annexed.] 

FORM   No.  1227 — Notice  of  appeal  from  judgment  and  order  denying  motion 

for  new  trial. 
(In  Stimson  M.  Co.  v.  Hughes  M.  Co.,  8  Cal.  App.  559;  97  Pac.  322.) 

[Title  of  court  and  cause.] 

To  the  defendant  in  the  above-entitled  action,  and  to  its  attorney, 
George  P.  Adams,  and  to  the  clerk  of  said  court : 

Please  take  notice,  that  the  plaintiff  in  the  above-entitled  action 
hereby  appeals  to  the  district  court  of  appeals  of  the  third  appellate 
district  of  the  state  of  California  from  the  judgment  made  and 
entered  in  the  superior  court  in  said  cause  on  October  3,  1906,  and 
from  the  whole  of  said  judgment,  and  also  from  the  order  made  and 
entered  by  the  said  superior  court  on  December  31,  1906,  denying 
the  plaintiff's  motion  for  a  new  trial. 

Dated  January  28,  1907.  Scarborough  &  Bowen, 

Attorneys  for  plaintiff. 

[Admission  of  receipt  of  copy  of  notice.] 

Received  copy  of  the  within  notice  this  28th  day  of  January,  1907. 

George  B.  Adams, 
Attorney  for  defendant. 

FORM   No.  1228 — Notice  of  appeal  from  judgment  granting  insufficient  relief. 
(In  Kiger  v.  McCarthy  Co.,  10  Cal.  App.  308;  101  Pac.  928.) 

[Title  of  court  arid  cause.] 

To  the  clerk  of  the  above-entitled  court,  and  to  Clifton  Axtell  and 
Edward  L.  Payne,  Esqs.,  attorneys  for  the  above-named  defendant: 


Ch.  CXLIIL]  NOTICES   OF   APPEAL.— FORMS.  1913 

You  will  please  take  notice,  that  the  plaintiff  in  the  above-entitled 
action  hereby  appeals  to  the  supreme  court  of  the  state  of  California 
from  the  judgment  therein  entered  in  the  said  superior  court  on  the 
1st  day  of  March,  1907,  in  favor  of  the  plaintiff  in  said  action  and 
against  said  defendant,  and  from  the  whole  thereof,  and  also  from 
the  order  denying  plaintiff's  motion  for  a  new  trial,  made  and  en- 
tered in  the  minutes  of  said  superior  court  the  6th  day  of  July,  1907. 
Dated  this  18th  day  of  July,  1907. 

C.  W.  Pendleton,  and 
M.  C.  McLemore, 

Attorneys  for  plaintiff. 
[Endorsement  of  filing  and  acknowledgment  of  service.] 

FORM  No.  1229 — Notice  of  appeal  from  order  denying  motion  for  new  trial. 
(In  O'Brien  v.  Big  Casino  G.  M.  Co.,  9  Cal.  App.  283;  99  Pac.  209.) 

[Title  of  court  and  cause.] 

To  the  plaintiff  in  the  above-entitled  action,  and  to  E.  W.  Holland, 
Esq.,  his  attorney : 

Please  take  notice,  that  the  defendant  in  the  above-entitled  action 
hereby  appeals  to  the  district  court  of  appeals  of  the  third  appellate 
district  of  the  state  of  California  from  the  order  of  said  superior 
court  therein  made  and  entered  on  the  28th  day  of  February,  1908, 
denying  and  overruling  defendant's  motion  for  a  new  trial,  and 
refusing  a  new  trial  thereof. 

Dated  April  7,  1908.  F.  W.  Street, 

H.  M.  Street, 

Attorneys  for  defendant. 

Appeal  from  part  of  an  order.— Where  an  appeal  is  permitted  from  a  part  of  an 
order  the  notice  above  should  be  changed  accordingly,  specifying  the  order  and  the 
part  thereof  appealed  from. 


FORM   No.   1230 — Notice  of  appeal   on   questions  of   both    law  and  fact  from 
justice's  court  to  the  superior  court.      (California.) 

[Title  of  court  and  cause.] 

You  will  please  take  notice,  that  the  plaintiff  [or  defendant]  in 
the  above-entitled  action  hereby  appeals  to  the  superior  court  of  the 
county  of  from  the  judgment  therein  made   and  entered  in 

the  said  justices'  court  on  the  day  of  ,  19     ,  in  favor  of 


3914  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVIL 

defendant  [or  plaintiff],  and  from  the  whole  thereof.  This  appeal 
is  taken  on  questions  of  both  law  and  fact. 

To  the  justice  of  said  justices'  court,  and  to  C.  D.,  attorney  for 
respondent. 

[Date.]  A.  B.,  Attorney  for  appellant. 


FORM   No.  1231 — Acknowledgment  of  service  of  notice  of  appeal. 

[Title  of  court  and  cause.] 

Due  service  of  the  foregoing  notice  of  appeal  is  hereby  admitted, 
and  receipt  of  a  copy  thereof  acknowledged,  this  day  of  , 

19     .  C.  D.,  Attorney  for  respondent. 

FORM   No.  1232— Affidavit  of  mailing  notice  of  appeal. 

(In  Merced  Bank  v.  Price,  9  Cal.  App.  177;  98  Pac.  383.) 

State  of  California, 
County  of  Mariposa. 

J.  S.  Larew,  being  first  duly  sworn,  deposes  and  says :  That  he  is 
an  attorney  at  law,  and  one  of  the  attorneys  for  defendants  in  the 
within-entitled  action;  that  he  resides  in  Mariposa  County,  state  of 
California,  and  has  his  office  in  the  town  of  Mariposa,  in  said  Mari- 
posa County;  that  J.  W.  Knox  is  the  attorney  of  record  for  the 
within-named  plaintiff  in  said  action,  and  that  he,  the  said  J.  W. 
Knox,  resides  in  the  town  of  Merced,  state  of  California,  and  has 
his  office  in  the  said  town  of  Merced;  that  in  each  of  said  towns 
above  mentioned  there  is  a  United  States  post-office,  and  between 
said  towns  there  is  a  regular  daily  communication  by  mail;  that  on 
the  first  day  of  March,  1907,  deponent  served  the  within  notice  of 
appeal  on  the  said  J.  W.  Knox,  the  said  attorney  for  plaintiff,  by 
depositing  a  true  copy  of  said  notice  of  appeal,  on  said  date,  in  the 
United  States  post-office  in  said  town  of  Mariposa,  properly  enclosed 
in  a  sealed  envelope  addressed  to  said  J.  W.  Knox,  attorney  at  law, 
Merced,  California,  and  prepaying  the  postage  thereon. 

J.  S.  Larew. 

Subscribed  and  sworn  to  before  me,  this  1st  day  of  March,  1907. 

[Seai.]  John  M.  Corcoran, 

Notary  Public  [etc.]. 


Ch.  CXLIII.]  UNDERTAKINGS.— FORMS.  1915 

§503.     UNDERTAKINGS  ON  APPEAL. 

FORM  No.  1233 — Undertaking  for  costs  and  damages  [or  charges]  on  appeal. 
(California,  C.C.  P.  §940;  Minnesota,  C.  C.  P.  §  4356;  Mon- 
tana, C.  C.  P.  §1725;  Nevada,  §3436;  North  Dakota, 
§  7208;  South  Dakota,  C.  C.  P.  §  445;  Utah,  C.  C.  P.  §  3306; 
Washington,  C.  C.  P.  §1721;   Wisconsin,  C.  C.  P.  §3052.) 

[Title  of  action  in  trial  court.] 

Whereas,  on  the  day  of  ,  19     ,  in  the  court 

within  and  for  the  county  of  ,  the  above-named  plaintiff 

recovered  a  judgment  against  the  above-named  defendant  *  for 
$  damages  and  costs.     [Or  otherwise  briefly  state  the  nature 

of  the  judgment.] 

And  the  said  defendant,  L.  M.,1  feeling  aggrieved  thereby,  intends 
to  appeal  therefrom  to  the  supreme  court  of  the  state  of  : 

Now,  therefore,  we,  A.  B.  and  C.  D.,  of  the  city  of  ,  in 

said  county,  do  hereby  undertake  that  the  said  appellant  will  pay 
all  costs  and  damages  [or  costs  and  charges,  as  in  Minnesota  stat- 
ute] which  may  be  awarded  against  him  on  said  appeal,  or  on 
dismissal  thereof,  not  exceeding  three  hundred  dollars.  [In  Wash- 
ington, two  hundred  dollars;  in  Minnesota,  North  Dakota,  South 
Dakota,  and  Wisconsin,  two  hundred  and  fifty  dollars.] 

[Date.]  A.  B. 

C.  D. 

[Justification  as  in  form  No.  1234.  or  as  in  form  No.  1243,  and 
acknowledgment,  where  required,  as  in  form  No.  1235.] 

FORM    No.   1234 — Justification  of  sureties  upon  undertaking.  (Common  form.) 

[Venue.] 

A.  B.  and  C.  D.,  being  first  duly  sworn,  each  for  himself  saj's :  That 

he  is  one  of  the  subscribers  to  the  foregoing  undertaking;   that 

he  is  a  resident  and  freeholder  within  the  state  of  ,  and  is 

worth  the  sum  of  $  ,  specified  in  the  within  undertaking,  over 

and  above  all  his  debts  and  liabilities,  in  property  within  the  state 

of  not  by  law   [or  exclusive  of  his  property]   exempt  from 

execution.  .     „ 

A.  B. 

[Jurat.]  C.  D. 

l  As  to  the  appellant  not  required  to  join   in   the  undertaking,   except   where   the 
statute  so  provides,  see  annotations  to  this  chapter,  paragraph  36,  p.  1937. 


1916  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

FORM  No.  1235 — Acknowledgment  of  undertaking.  (Under  statutes  requir- 
ing acknowledgment.) 

[Venue.] 

On  this  day  of  ,  19     ,  before  the  undersigned,  a 

notary  public  in  and  for  said  county  and  state,  personally  appeared 
A.  B.,  and  C.  D.,  known  to  me  to  be  the  persons  who  executed  the 
within  and  foregoing  instrument,  and  acknowledged  to  me  that 
they  executed  the  same  as  their  free  act  and  deed.  [Or,  otherwise, 
setting  forth  the  words  of  the  statute  relating  to  the  form  or  sub- 
stance of  acknowledgments.] 

[Seal.]  E.  F.,  Notary  Public. 

FORM   No.  1236 — Undertaking  by  surety  corporation. 

[Title  of  action  in  trial  court.] 

[After  preliminary  matter,  designating  the  judgment,  etc.,  as  in 
the  particular  case  required,  continue  as  follows:] 

Now,  therefore,  in  consideration  of  the  premises,  the  undersigned 
[naming  the  corporation],  a  corporation  duly  organized  and  doing 
business  under  and  by  virtue  of  the  laws  of  the  state  of  ,  and 

duly  licensed  therein  for  the  purposes  of  making,  guaranteeing,  and 
becoming  sole  surety  upon  bonds  and  undertakings,  does  hereby 
undertake  [etc.,  as  in  form  No.  1233,  for  costs;  or  as  in  form  No. 
1237,  where  stay  of  execution  is  asked,  etc.]. 

[Date.]  S.  D.  Co. 

By  ,  Attorney  in  fact 

[or  other  authorized  officer]. 

Attest :  By  ,  Agent. 

[Acknowledgment  by  the  officers  executing  as  such.] 

Under  the  statutes,  the  qualifying  of  a  surety  company  before  a  license  is  issued 
generally  serves  in  lieu  of  justification  upon  each  particular  bond. 

FORM  No.  1237 — Undertaking  on  appeal,  to  stay  execution  of  money  judg- 
ment. 

[Title  of  court  and  cause.] 

Whereas,  in  the  above-entitled  action  appealed  to  the  supreme 

court  of  the  state  of  from  a  judgment    [or   designating   an 

appealable  order]  made  and  entered  against  in  said  action,  in 

the  said  superior  court,  in  favor  of  the  in  said  action,  on  the 

day  of  ,  19     ,  for  [here  state  amount  for  which  judg- 

ment was  rendered,  etc.],  costs  of  suit  and  : 


Ch.  CXLIII.]  UNDERTAKINGS.— FORMS.  1917 

[Here  insert  provision  as  to  costs  and  damages,  as  in  form  No. 
1233,  second  and  third  paragraphs.] 

And  whereas,  the  appellant  is  desirous  of  staying  the  execution 
of  the  said  so  appealed  from,*  we  do  further,  in  consideration 

thereof  and  of  the  premises,  jointly  and  severally  undertake  and 
promise,  and  do  acknowledge  ourselves  further  jointly  and  sever- 
ally bound  in  the  further  sum  of  $  ,  being  double  the  amount 
named  in  said  ,  [or  state  the  penal  amount  of  the  bond  as 
otherwise  prescribed  by  the  statute,  or  as  fixed  by  the  court]  ;  that  if 
the  said  appealed  from,  or  any  part  thereof,  be  affirmed,  or 
the  appeal  dismissed,  the  appellant  shall  pay  the  amount  directed  to 
be  paid  thereby,  or  any  part  of  such  amount  as  to  which  the  same 
shall  be  affirmed,  if  affirmed  only  in  part,*  and  all  damages  and  costs 
which  shall  be  awarded  against  the  appellant  upon  the  appeal,  or 
on  a  dismissal  thereof,  and  that  if  said  appellant  does  not  make  such 
payment  within  days  of  the  filing  of  the  remittitur  from  the 
supreme  court  in  the  said  superior  court,  judgment  may  be  entered, 
on  motion  of  the  respondent,  in  his  favor,  against  the  sureties  hereto 
for  such  amount,  together'with  the  interest  that  may  be  due  thereon, 
and  the  damages  and  costs  which  may  be  awarded  against  the  appel- 
lant upon  said  appeal. 

[Date.]  [Signatures  of  sureties.]      [Seals.] 

[Annex  acknowledgment  if  required,  and  justification  of  sureties. 
See  forms  Nos.  1234,  1235,  and  1243.] 

FORM    No.   1238 — Undertaking   on   appeal   from   judgment   directing   the   pay- 
ment of  money  in  instalments. 

[Title  of  court  and  cause.] 

[After  setting  forth  the  provisions  in  the  preceding  form,  insert 
between  the  stars  (**)  the  following:] 

*  *  *  we  do  also  jointly  and  severally  undertake  that  the 
appellant  will  pay  each  instalment  of  said  judgment  which  becomes 
payable  pending  such  appeal,  or  the  part  thereof  as  to  which  such 
judgment  is  affirmed,  not  exceeding  the  sum  of  $  .     [And  so 

on,  modifying  "payment"  to  "each  of  said  payments"  (or  instal- 
ments) in  the  concluding  clauses.] 

A.  B. 
C.  D. 

[Acknowledgment  where  required,  and  justification  of  sureties.] 


1918  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

FORM   No.  1239 — Undertaking  where  judgment  directs  delivery  of  documents 
or  other  personal  property. 

[Title  of  action  in  trial  court.] 

[Proceed  as  in  form  No.  1233  to  the  star  (*)  and  continue:] 
wherein  it  was  adjudged  that  the  said  defendant  assign  [or  deliver] 
to  the  plaintiff  certain  documents  in  said  judgment  described  [or 
deliver  to  the  plaintiff  certain  personal  property  in  said  judgment 
described] ,  and  recover  the  sum  of  $  ;  and  the  said  defendant, 

being  aggrieved  thereby,  intends  to  appeal  to  the  supreme  court  of 
the  state  of  : 

Now,  therefore,  we,  A.  B.  and  C.  D.,  of  ,  in  the  said  county 

of  ,  do  hereby  undertake  that  the  said  appellant  will  pay  all 

costs  and  damages  [or  charges,  where  so  worded  by  statute]  which 
may  be  awarded  against  him  on  said  appeal,  not  exceeding  $  ; 

and  do  also  further  undertake  in  the  sum  of  $  [being  the 

statutory  amount,  or  the  amount  directed  by  the  judge  of  said  court] 
that  the  appellant  will  obey  the  order  of  the  appellate  court  on  the 
appeal. 

[Date.]  A.  B. 

C.  D. 

[Acknowledgment,  if  required,  and  justification  of  sureties  as  in 
form  No.  1234.] 

FORM   No.  1240 — Undertaking   where   judgment   directs   sale   or   delivery   of 
real    property. 

[Title  of  action  in  trial  court.] 

[Proceed  as  in  form  No.  1233  to  the  star  (*)  and  continue:] 
wherein  the  sale  [or  delivery  of  the  possession]  of  certain  real  prop- 
erty therein  described  was  directed  and  adjudged,  and  the  defend- 
ant, feeling  aggrieved  thereby,  intends  to  appeal  to  the  supreme 
court  of  the  state  of  : 

Now,  therefore,  we,  A.  B.  and  C.  D.,  both  of  ,  in  the  said 

county  of  ,  do  hereby  undertake  that  the  said  appellant  will 

pay  all  costs  that  may  be  awarded  against  him  on  said  appeal,  not 
exceeding  $  ,  and  do  also  undertake,  in  the  sum  of  $  , 

[being  the  amount  as  ascertained  by  statute,  or  the  amount  directed 
by  the  judge  of  said  court,]  that  during  the  possession  of  such  prop- 
erty by  the  appellant  he  will  not  commit  or  suffer  to  be  committed 
any  waste  thereon,  and  that  if  the  judgment  be  affirmed  he  will  pay 


■Ch.  CXLIII.]  ERROR   TO   STATE   COURTS.— FORMS.  1919 

the  value  of  the  use  and  occupation  of  the  property  from  the  time 
of  the  appeal  until  the  delivery  of  the  possession  thereof  pursuant 
to  the  judgment. 

[Date.]  A.  B. 

C.  D. 

[Acknowledgment,  if  required,  and  justification  of  sureties  as  in 
form  No.  1234.] 

FORM   No.  1241 — Undertaking  where  appeal  is  had  from  an  order  vacating 
writ  of  attachment  or  injunction. 

[Title  as  in  trial  court.] 

Whereas,  an  order  was  made  in  this  action  on  the  day  of 

,  19     ,  vacating  [or  modifying]  the  writ  of  attachment  issued 

in  this  action   [or  denying,  dissolving,  or  modifying  an  injunction 

herein],  from  which  order  the  plaintiff  has   given   due  notice   of 

appeal: 

Now,  therefore,  we,  A.  B.  and  C.  D.,  both  of  the  city  of  ,  in 

County,  state  of  ,  do  hereby  undertake,  in  the  sum  of 

$  ,  being  double  the  amount  claimed  by  the  appellant,  [or,  other- 
wise, ascertained  under  the  statute,  or  the  amount  directed  by  the 
judge  of  said  court,]  that  if  the  said  order  appealed  from,  or  any 
part  thereof,  be  affirmed,  the  appellant  will  pay  all  costs  and  dam- 
ages which  may  be  awarded  against  him  on  the  appeal,  and  all  which 
the  defendant  may  sustain  by  reason  of  the  continuance  of  said 
attachment  [or  by  the  granting  or  continuance  of  said  injunction]. 

[Date.]  A.  B. 

C.  D. 

[Add  acknowledgment,  if  required,  and  justification  of  sureties 
as  in  form  No.  1231.] 

§504.     PROCEEDINGS     FOR    WRITS    OF    ERROR     IN    CERTAIN    STATE 

COURTS. 
FORM   No.   1242 — Writ  of  error  in  civil  action. 

State  of  ♦  lss 

Supreme  Court,  j 

The  state  of  to  the  judge  of  the  court  of  the  county 

of  ,  in  said  state,  greeting: 

Wherefore,  in  the  record  and  proceedings,  and  also  in  the  rendition 
of  judgment,  in  a  suit  which  was  duly  tried  in  the  court  of  the 


1LI20  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVIL 

county  of  aforesaid,  before  you,  between  M.  N.,  plaintiff,  and 

D.  F.,  defendant,  in  an  action  of  [here  state  briefly  the  nature  of  the 
action],  manifest  error  hath  intervened  to  the  great  damage  of 
the  said  D.  F.,  as  by  his  complaint  we  are  informed ; 

And  being  willing  that  the  error,  if  any  there  be,  should  in  due 
manner  be  corrected  and  full  and  speedy  justice  be  done  to  the  par- 
ties aforesaid : 

We  do  command  you,  that  if  judgment  be  thereupon  given,  then 
you  send  to  the  judges  of  the  supreme  court  of  the  state  of  , 

distinctly  and  openly,  under  your  seal,  with  all  convenient  dispatch, 
a  transcript  of  the  record  and  proceedings  of  the  suit  aforesaid,  with 
all  things  concerning  the  same,  and  this  writ,  so  that  they  may  have 
and  return  the  same  at  the  next  term  of  our  said  supreme  court,  to 
be  held  at  ,  in  the  state  aforesaid,  on  the  day  of  , 

19  ,  that  the  record  and  proceedings  aforesaid,  being  inspected,  we 
may  cause  to  be  further  done,  for  correcting  such  error,  what  of 
right  and  according  to  law  and  the  rules  of  our  said  court  ought  to 
be  done. 

"Witness  the  Hon.  R.  S.,  Chief  Justice  of  the  supreme  court  of  the 

state  of  ,  at  ,  this  day  of  ,  19     . 

[Seal  of  court.]       Attest:  m  XT    ™    , 

L  J  T.  N.,  Clerk. 

FORM   No.  1243 — Bond  for  costs  and  damages  on  writ  of  error  in  civil  action. 

Know  all  men  by  these  presents,  that  we,  L.  M.,  principal,  and 
A.  B.  and  C.  D.,  sureties,  all  of  ,  in  the  county  of  ,  and 

state  of  ,  are  held  and  firmly  bound  to  E.  F.,  of  ,  in 

the  sum  of  $250  [or  other  amount],  lawful  money  of  the  United 
States,  to  be  paid  to  the  said  E.  F.,  his  heirs,  executors,  adminis- 
trators, or  assigns,  for  which  payment  well  and  truly  to  be  made  we 
bind  ourselves,  our  heirs,  executors,  and  administrators,  jointly  and 
severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this  day  of  ,  19     . 

Whereas,  the  above- ^ounden  L.  M.  has  sued  a  writ  of  error  out  of 
the  supreme  court  of  the  state  of  ,  directed  to  the  judge  of  the 

circuit  court  for  County,  commanding  that  a  transcript  of  the 

record  in  a  certain  action  of  [naming  it],  between  E.  F.  and  L.  M., 
in  said  circuit  court,  wherein  judgment  was  rendered  against  said 
L.  M.  on  the  day  of  ,  19     ,  be  sent  to  said  supreme  court : 

Now,  the  condition  hereof  is  such  that  if  the  said  L.  M.  shall  well 


Ch.  CXLIII.]  ERROR   TO   STATE   COURTS.— FORMS.  1921 

and  truly  pay  all  costs  and  damages  which  may  be  awarded  against 
him  on  said  writ  of  error,  then  this  obligation  shall  be  void;  other- 
wise, to  be  and  remain  in  force.  T    ^        rQpai  i 

A.  B.       [Seal.] 
CD.       [Seal.] 
Sealed  and  delivered  in  presence  of  [two  witnesses]. 

[Justification  of  sureties.] 

[Venue.] 

A.  B.  and  C.  D.,  being  first  duly  sworn,  each  for  himself  says. 
That  he  is  one  of  the  subscribers  to  the  foregoing  bond;  that  he  is  a 
resident  and  householder  [or  freeholder]  of  the  state  of  ,  and 

is  worth  the  sum  of  $  ,  over  and  above  all  his  debts  and  lia- 

bilities, in  property  within  the  state  of  ,  not  by  law  exempt 

from  execution.  .     n 

A.  B. 

[Jurat.]  C.  D. 

FORM   No.  1244 — Supersedeas  bond  on  writ  of  error  in  civil   action. 

[Proceed  as  in  last  preceding  form  to  the  condition,  making  the 
penalty  double  the  amount  of  the  judgment  (or  other  statutory 
amount),  and  continue:] 

Now,  the  condition  hereof  is  such  that  if  the  said  L.  M.  shall  prose- 
cute his  action  to  effect,  and  well  and  truly  pay  all  costs  and  dam- 
ages which  may  be  awarded  against  him  therein,  and,  in  case  the 
judgment  of  the  court  below  is  affirmed,  will  pay  the  amount  thereof, 
with  costs,  then  this  obligation  [etc.]. 

[Conclude  as  in  last  preceding  form,  and  add  justification  of  sure- 
ties.] 

FORM    No.  1245 — Order  staying  proceedings. 

The  state  of  to   [name  appellee  and  all  others  who  are  to 

be  notified]  : 

Whereas,  L.  M.  has  appealed  from  the  judgment  [or  order]  of  the 
court  of  County,  state  of  ,  rendered  on  the 

day  of  ,  19     ,  in  an  action  then  pending  wherein  E.  F.  was 

plaintiff  and  L.  M.  was  defendant;  and  whereas,  the  said  L.  M.  has 
filed  in  my  office  this  day  a  supersedeas  bond  in  said  cause  with 
sureties  approved  by  me : 


1922  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

Now,  therefore,  you  are  hereby  commanded  and  required  to  stay 
any  and  all  proceedings  in  said  cause  under  such  judgment  [or 
order] ,  or  so  much  thereof  as  is  superseded  thereby,  from  and  after 
the  date  hereof  and  until  said  appeal  is  finally  disposed  of  and  deter- 
mined. 

Witness  T.  M.,  clerk  of  said  court,  with  the  seal  thereof  hereto- 
affixed,  this  day  of  ,  19     . 

[Seal  of  court.]  T.  M.,  Clerk  of  Court, 

§505.     PROCEEDINGS  FOR  WRIT  OF  ERROR  TO  THE  SUPREME  COURT 
OF  THE  UNITED  STATES. 

FORM   No.  1246 — Petition  for  writ  of  error. 

In  the  Supreme  Court  in  the  state  of  , 

[Title  of  cause.] 

Comes  now  the  above-named  ,  appellant,  and  says:  That  on 

the  day  of  ,  19     ,  a  judgment  in  this  cause  was  entered 

by  this  court  against  ,  appellant,  and  thereafter  a  petition  for 

rehearing  was  filed,  presented,  considered,  and  on  the  day  of 

,  19     ,  denied  by  this  court,  whereupon  said  judgment  became 
final ;  that  said  was  and  is  aggrieved  in  that,  in  said  judgment 

and  the  proceedings  had  prior  thereto  in  this  case,  certain  errors 
were  committed  to  his  prejudice;  that  this  is  an  action  brought 
under  the  statutes  of  the  United  States  relating  to  [here  designate 
the  particular  statute]  ;  and  that  by  this  action  there  was  drawn  in 
question  the  construction  of  certain  of  said  statutes,  and  the  decision 
of  this  court  is  against  said  title  and  right  claimed  by  the  said  , 

appellant,  and,  as  he  believes,  contrary  to  the  statutes  of  the  United 
States,  relating  to   [here  designate  the  statutes],  and  the  right  of 
,  appellant,  thereunder,  all  of  which  will  more  fully  appear  in 
detail  from  the  assignment  of  errors  filed  herein. 

Wherefore,  said  prays  that  a  writ  of  error  may  issue  to  the 

supreme  court  of  the  state  of  for  the  correcting  of  the  errors 

complained  of,  and  that  a  duly  authenticated  transcript  of  the  rec- 
ord, proceedings,  and  papers  herein  may  be  sent  to  the  United  States 
supreme  court. 

A.  B.,  Attorney  for  ,  appellant 

[or  plaintiff  in  error]. 


Ch.  CXL1IL]         ERROR  TO  U.  S.  SUPREME  COURT.— FORMS.  1923 

FORM   No.  1247 — Assignment  of  error  on  petition  for  writ. 

In  the  Supreme  Court  of  the  United  States. 

[Title  of  cause.] 

Comes  now  the  plaintiff  in  error  in  the  above-entitled  cause  and 
avers  and  shows  that  in  the  record  and  proceedings  in  said  cause  the 
supreme  court  of  the  state  of  erred,  to  the  grievous  injury  and 

wrong  of  the  plaintiff  herein,  and  to  the  prejudice,  and  against  the 
rights,  of  the  plaintiff  in  error  in  the  following  particulars,  to  wit : 
[Here  insert  assignments  of  error.] 

Wherefore,  for  these  and  other  manifest  errors  appearing  in  the 

record,  the  said  ,  plaintiff  in  error,  prays  that  the  judgment 

of  the  said  supreme  court  of  the  state  of  be  reversed  and  set 

aside   and  held  for  naught,   and  that  judgment   be   rendered  for 

plaintiff  in  error,  granting  him  his  rights  under  the  statutes  and 

laws  of  the  United  States;  and  plaintiff  in  error  also  prays  judgment 

for  his  costs.  .    „     ...  „  !•.•«;• 

A.  B.,  Attorney  tor  ,  plaintm  in  error. 

[Address  to  defendant  in  error.] 

FORM   No.  1248 — Allowance  of  writ  of  error. 

In  the  Supreme  Court  of  the  state  of 

[Title  of  cause.] 

A.  B.,  the  appellant  above  named,  on  this  day  of  ,  19     , 

having  filed  and  presented  to  this  court  his  petition  praying 
for  the  allowance  of  a  writ  of  error  intended  to  be  urged  by  him, 
and  praying  further  that  a  duly  authenticated  transfer  of  the  records, 
proceedings,  and  papers  upon  which  the  judgment  herein  was  ren- 
dered may  be  sent  to  the  supreme  court  of  the  United  States,  and 
that  such  other  and  further  proceedings  may  be  had  in  the  premises 
as  may  be  just  and  proper;  and  upon  consideration  of  the  said  peti- 
tion, this  court,  desiring  to  give  petitioner  an  opportunity  to  test  in 
the  supreme  court  of  the  United  States  the  questions  therein  pre- 
sented, it  is  ordered  by  this  court  that  a  writ  of  error  be  and  the 
same  is  allowed,  as  prayed;  provided,  however,  that  said  , 

appellant,  give  a  bond  according  to  law  in  the  sum  of  $2,000,  which 
said  bond  shall  operate  as  a  supersedeas  bond. 

In  testimony  whereof,  witness  my  hand,  this         day  of         ,  19     . 
W.  H.  B.,  Chief  Justice  of  the  Supreme  Court 
of  the  state  of 


1924  NEW  TRIALS,  APPEALS,  ETC.  [Til.  XVII. 

FORM   No.  1249 — Bond  on  a  writ  of  error. 

In  the  Supreme  Court  of  the  United  States. 
[Title  of  cause.] 

Know  all  men  by  these  presents,  that  I,  ,  of  the  county  of 

,  state  of  ,  as  principal,  and  we,  and  ,  of  the 

county  of  ,  state  of  ,  as  sureties,   are  held  and  firmly 

bound  unto  the  above-named  in  the  sum  of  $2,000,  to  be  paid 

to  him,  and  for  the  payment  of  which  well  and  truly  to  be  made  we 
bind  ourselves,  and  each  of  us,  our,  and  each  of  our,  heirs,  executors, 
and  administrators,  jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  19     . 

Whereas,  the  above-named  ,  plaintiff  in  error,  seeks  to  prose- 

cute a  writ  of  error  in  the  supreme  court  of  the  United  States  to 
reverse  the  judgment  rendered  in  the  above-entitled  action  in  the 
supreme  court  of  : 

Now,  therefore,  the  condition  of  this  obligation  is  such  that  if  the 
above-named  ,  plaintiff  in  error,  shall  prosecute  his  writ  of 

error  to  effect,  and  accept  all  costs  and  damages  that  may  be  ad- 
judged if  he  shall  fail  to  make  good  his  plea,  then  this  obligation  to 
be  void;  otherwise,  to  remain  in  full  force  and  virtue. 

[Signature  of  principal.]     [Seal.] 
[Signature  of  surety.]  [Seal.] 

[Signature  of  surety.]  [Seal.] 

FORM   No.  1250 — Oath  of  sureties  to  the  foregoing  bond. 

State  of  , ") 

County  of  .  j  ' 

and  ,  whose  names  are  subscribed  as  sureties  to  the 

above  bond,  being  severally  and  duly  sworn,  each  for  himself  says: 
That  he  is  a  resident  and  freeholder  of  the  state  of  ,  and  is 

worth  more  than  the  sum  in  said  bond  specified  as  the  penalty  there- 
of over  and  above  all  his  just  debts  and  liabilities  in  property  not  by 
law  exempt  from  execution  in  this  state.  [Or  otherwise  wording 
as  the  particular  statute  of  the  state  where  executed  may  provide.] 

[Signatures  of  sureties.] 
[Jurat.] 


Ch.  CXLIIL]         ERROR  TO  U.  S.  SUPREME  COURT.— FORMS.  1<J25 

FORM   No.   1251 — Approval   of  bond   (annexed  thereto). 

This  bond  approved  this  day  of  ,  19     . 

W.  H.  B.,  Chief  Justice  of  the  Supreme  Court 
of  the  state  of 

FORM   No.  1252— Writ  of  error. 

United  States  of  America,  ss. 

The  President  of  the  United  States  to  the  Honorable  the  Justices 
of  the  Supreme  Court  of  the  state  of  ,  greeting : 

Because  in  the  record  and  proceedings,  and  also  in  the  rendition 
of  the  judgment,  before  you,  or  some  of  you,  being  the  highest  court 
of  law  or  equity  of  the  said  state  in  which  a  decision  could  be  had  in 
said  suit  between  ,  plaintiff,   and  ,   defendant,   wherein 

rights,  privileges,  and  immunities  are  claimed  under  the  constitu- 
tion and  statutes  of  the  United  States,  and  under  authority  exercised 
under  the  United  States,  and  the  decision  was  against  the  rights, 
privileges,  and  immunities  set  up  or  claimed  under  such  constitution, 
statutes,  and  authority,  a  manifest  error  has  happened,  to  the  great 
damage  of  the  said  ,  as  by  his  complaint  appears,  we,  being 

willing  that  the  error,  if  any  hath  been,  shall  be  duly  corrected  and 
full  and  speedy  justice  done  to  the  parties  aforesaid  in  this  behalf, 
do  command  you,  that,  if  judgment  be  therein  given,  and  then  under 
your  seal  distinctly  and  openly,  you  send  the  record  of  the  proceed- 
ings aforesaid,  with  all  things  concerning  the  same,  to  the  supreme 
court  of  the  United  States,  together  with  this  writ,  so  that  you  may 
have  the  same  at  Washington  on  the  day  of  ,  19       next, 

in  the  said  supreme  court,  to  be  then  and  there  held,  that,  the  record 
and  proceedings  aforesaid  being  inspected,  the  said  supreme  court 
may  cause  further  to  be  done  therein  to  correct  that  error  what  of 
right  and  according  to  the  laws  and  customs  of  the  United  States 
should  be  done. 

Witness  the  Hon.  ,  Chief  Justice  of  the  United  States,  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

D.  C,  Clerk  of  the  Supreme  Court  of  the  United  States. 

[Seal  of  the  supreme  court  of  the  United  States.] 

Writ  allowed: 

J.  M.  H.,  Associate  Justice  of  the  Supreme  Court 
of  the  United  States. 

Jury's  PI.— 122. 


1926  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVIL 

FORM   No.  1253 — Citation  upon  writ  of  error. 

United  States  of  America,  ss. 
To  ,  greeting: 

You  are  hereby  cited  and  admonished  to  be  and  appear  at  a  ses- 
sion of  the  supreme  court  of  the  United  States,  to  be  holden  at 
Washington  on  the  day  of  ,  19     ,  pursuant  to  a  writ  of 

error  filed  in  the  clerk's  office  of  the  supreme  court  of  the  state  of 
,  wherein  is  plaintiff  and  you  are  defendant,  to  show 

cause,  if  any  there  be,  why  judgment  in  said  writ  of  error  mentioned 
should  not  be  corrected  and  speedy  justice  be  done  to  the  parties  in 
that  behalf. 

Witness  the  Hon.  ,  Justice  of  the  said  Supreme  Court  of  the 

United  States,  this  day  of  ,  in  the  year  of  our  Lord  one 

thousand  nine  hundred  and 

J.  M.  H.,  Associate  Justice  of  the  Supreme  Court 
of  the  United  States. 
Due  service  of  a  copy  of  the  within  citation  is  hereby  admitted,  on 
this  the  day  of  ,  19     . 

C.  D.,  Attorney  for  defendant  in  error. 

§506.     MISCELLANEOUS   ORDERS,  STIPULATIONS,  AND   REMITTITUR. 
FORM   No.  1254 — Order  dispensing  with   undertaking   on   appeal   from   judg- 
ment or  order  denying  new  trial.     (In  probate.) 

(Elizalde  v.  Elizalde,  137  Cal.  634;  66  Pac.  369;  70  Pac.  861.) 

[Title  of  court  and  cause.] 

Whereas,  the  above-entitled  action  was  commenced  against  the 
defendant,  Ernest  Graves,  in  his  representative  capacity,  as  adminis- 
trator of  the  estate  of  Marcus  A.  Elizalde,  deceased;  and  whereas, 
a  judgment  was  obtained  in  said  action  by  the  plaintiff  against  said 
defendant,  Ernest  Graves,  as  administrator ;  and  whereas,  said  Ernest 
Graves  is  about  to  appeal  from  said  judgment,  and  has  filed  and 
served  his  notice  of  appeal  therefrom;  and  whereas,  said  defendant. 
Ernest  Graves,  as  such  administrator,  has  made  a  motion  to  this 
court  for  a  new  trial  of  said  cause,  and  said  motion  has  been  this 
day  denied;  and  whereas,  said  Ernest  Graves,  as  such  administrator, 
is  about  to  appeal  from  the  order  of  this  court  denying  said  motion 
for  a  new  trial ;  and  whereas,  said  appellant  is  acting  in  the  right  of 
another  in  said  action,  and  in  taking  said  appeal,  and  as  adminis- 
trator of  said  estate  of  Marcus  A.  Elizalde,  deceased;  and  whereas. 


Ch.  CXLIII.]         ORDERS,    STIPULATIONS,    REMITTITUR.  1D2? 

he  has  moved  this  court  to  dispense  with  the  security  as  required 
by  chapter  1,  title  13,  part  2,  of  the  Code  of  Civil  Procedure ;  and 
whereas,  he  has  given  an  official  bond  as  such  administrator  which 
he  desires  shall  stand  as  an  undertaking  on  appeal  from  said  judg- 
ment and  from  said  order  denying  his  motion  for  a  new  trial,  and  it 
appearing  to  this  court  that  the  ordinary  undertaking  on  appeal  and 
the  security  required  by  said  chapter  may  be  dispensed  with ;  now, 

It  is  ordered,  that  Ernest  Graves,  as  administrator  of  the  estate  of 
Marcus  A.  Elizalde,  deceased,  shall  not  be  required  to  give  an  under- 
taking on  his  appeal  from  said  judgment  and  order  herein,  and  said 
security  is  dispensed  with  on  each  of  said  appeals. 

Done  in  open  court,  this  19th  day  of  July,  1898. 

B.  T.  Williams, 
Judge  of  Superior  Court. 

FORM  No.  1255 — Order  fixing  conditions  and  terms  of  undertaking  on  appeal 
from  an  intermediate  order.  (North  Dakota,  South  Da- 
kota, Wisconsin.) 

[Title  as  in  trial  court.] 

An  order  having  been  made  and  entered  in  this  action  on  the 
.  day  of  ,  19     ,  to  the  effect  that  [state  terms  of  order],  and  the 

defendant  being  about  to  appeal  therefrom,  and  having  applied  to 
me,  upon  due  notice,  to  fix  the  conditions  upon  which  compliance 
with  said  order  shall  be  delayed,  and  to  fix  the  terms,  amount,  and 
effect  of  the  undertaking  for  the  stay  of  the  execution  of  such  order 
until  the  determination  of  such  appeal,  and  after  hearing  counsel 
for  the  parties,  and  being  advised  in  the  premises, 

On  motion  of  M.  N.,  attorney  for  the  defendant, 

It  is  ordered,  that  the  execution  of  said  order  be  stayed  until  the 
determination  of  such  appeal,  upon  the  following  conditions,  to  wit : 
[Here  specify  the  conditions.] 

And  it  is  further  ordered,  that  the  said  defendant  on  such  appeal 
cause  to  be  executed  and  filed  on  his  part  an  undertaking,  with  two 
sufficient  sureties,  in  the  sum  of  $  ,  to  the  effect  that  [here  state 

terms  of  the  undertaking  to  be  given]. 

tDate.]  S.  T.,  Judge. 


1928  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVIL 

FORM   No.  1256 — Waiver  of  undertaking  on  appeal. 

(Prom  the  record  in  Goldberg-Bowen   Co.  v.   Stablemen's  Union, 

149  Cal.  429 ;  86  Pac.  806 ;  117  Am.  St.  Rep.  145 ;  8  L.  E.  A.  (N.  S.) 

460;  9  Ann.  Cas.  1219.) 

[Title  of  court  and  cause.] 

The  plaintiff  above  named  hereby  waives  any  undertaking  on  ap- 
peal required  by  section  940,  941,  and  942,  or  by  any  of  said  sec- 
tions of  the  Code  of  Civil  Procedure  of  the  state  of  California. 

Dated  the  30th  day  of  December,  1904. 

Bush  Finnell, 

[Filing  endorsement.]  Attorney  for  plaintiff. 

FORM   No.  1257 — Waiver  of  undertaking  on   appeal,  and   of  deposit   in    lieu 
thereof. 

(In  Jolliffe  v.  Steele,  9  Cal.  App.  212;  98  Pac.  544.) 

[Title  of  court  and  cause.] 

[Endorsed  on  notice  of  appeal  from  judgment :] 
The  undertaking  on  appeal  and  a  deposit  in  money  in  lieu  thereof 
are  hereby  waived. 

Catherine  E.  Jolliffe, 

By  J.  "Wiseman  MacDonald,  her  attorney. 

FORM   No.  1258 — Stipulation   as  to  correctness  of  transcript  on   appeal   and 
undertakings  on  appeal  filed. 

(In  Kornblum  v.  Arthurs,  154  Cal.  246;  97  Pac.  420.) 

[Title  of  court  and  cause.] 

It  is  hereby  stipulated  and  agreed  by  and  between  the  respective 
counsel  for  plaintiff  and  defendant  in  the  above-entitled  action,  that 
the  foregoing  [all  the  papers  constituting  the  record]  is  a  full,  true, 
and  correct  transcript  of  the  record  on  appeal  from  the  judgment 
and  from  the  order  denying  motion  for  new  trial,  and  that  the  same 
contains  full,  true,  and  correct  copies  of  the  judgment,  bill  of  excep- 
tions, order  denying  motion  for  new  trial,  notice  of  appeal  from 
judgment,  and  notice  of  appeal  from  order  denying  motion  for  new 
trial,  and  that  the  said  appeals  from  said  judgment  and  order  deny- 
ing motion  for  new  trial  and  bill  of  exceptions  may  be  taken,  heard, 
and  determined  on  the  foregoing  transcript. 

And  it  is  further  stipulated,  that  the  undertakings  on  appeal  by 
the  plaintiff  from  the  judgment  and  from  the  order  denying  motion 


Cb.CXLIII.]  ORDERS,    STIPULATIONS,    REMITTITUR.  1929 

for  new  trial,  in  due  form,  have  been  properly  filed  within  the  time 
required  by  law. 

Dated  this  day  of  March,  1907. 

Goldberg  &  Meily, 
Attorneys  for  plaintiff  and  appellant. 
Tanner,  Taft  &  Odell, 
Attorneys  for  defendant  and  respondent. 

FORM   No.  1259 — Order  dismissing  appeal. 

(From  the  record  in  Nolan  v.  Fidelity  and  Deposit  Co.,  2  Cal.  App. 

l;82Pac.  1119.) 

[Title  of  court  and  cause.] 

The  motion  of  plaintiff  to  dismiss  the  appeal  herein  having  been 
heretofore  submitted  to  the  court  for  consideration,  and  now  the 
court  having  fully  considered  the  same,  and  being  fully  advised 
herein,  it  is  ordered,  that  said  motion  be  and  the  same  is  hereby 
granted. 

[Attest  by  the  clerk.] 

FORM   No.   1260 — Order   dismissing    appeal    from    order    denying    motion    for 
new  trial,  for  failure  to  file  undertaking. 

(In  Stewart  v.  Burbridge  (Cal.  App.),  101  Pac.  419.) 

[Title  of  court  and  cause.] 

It  appearing  to  the  court  that  no  undertaking  has  been  filed  to  per- 
fect the  appeal  taken  from  the  order  denying  defendant's  motion 
for  a  new  trial  in  the  above-entitled  action,  it  is  ordered  that  the 
said  appeal  be  and  the  same  is  hereby  dismissed. 

[Date.]  S.  T.,  Judge. 

FORM    No.  1261 — Order  denying  motion  to  dismiss  appeal  from  the  judgment. 
(In  Stewart  v.  Burbridge  (Cal.  App.),  101  Pac.  419.) 

[Title  of  court  and  cause.] 

It  appearing  to  the  court,  from  a  duly  certified  copy  thereof  on  file 
herein,  that  a  notice  of  appeal  from  the  judgment  was  served  on 
plaintiff  and  filed  in  the  superior  court,  and  an  undertaking  to  per- 
fect the  same  filed  on  the  same  day,  to  wit,  on  the  17th  day  of  July, 
1908,  it  is  ordered  that  the  motion  to  dismiss  the  appeal  from  the 
judgment  is  hereby  denied. 

[Date.]  S.  T.,  Judge. 


1930  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

FORM   No.  1262 — Provisional  order  affirming  judgment  on  appeal. 

(In  Greve  v.  Echo  Oil  Co.,  8  Cal.  App.  275;  96  Pac.  904.) 

[Title  of  court  and  cause.] 

It  is  ordered,  that  if  respondent  shall  within  ten  days  after  the 
filing  of  the  remittitur  in  the  trial  court  enter  partial  satisfaction  of 
the  judgment  to  the  amount  of  $90  as  of  the  date  of  the  entry  of  the 
judgment,  the  order  and  judgment  shall  stand  affirmed;  otherwise, 
the  order  and  judgment  are  reversed;  plaintiff  to  recover  its  costs 
of  appeal. 

[Date.]  S.  T.,  Judge. 

FORM  No.  1263 — Order  of  supreme  court  relating  to  exhibits. — Action  to 
quiet  title,  and  for  value  of  rents  and  profits,  and  for  res- 
titution. 

(In  Gage  v.  Gunther,  136  Cal.  338;  68  Pac.  710;  89  Am.  St.  Rep.  141.) 

[Title  of  court  and  cause.] 

Upon  reading  the  stipulation  of  the  attorneys  for  appellants  and 
respondents,  and  good  cause  appearing  therefor: 

It  is  hereby  ordered  by  the  court,  that  the  copies  of  the  transcript 
on  appeal  in  the  above-entitled  cause  from  the  judgment  entered  in 
said  cause,  and  also  from  the  order  denying  the  motion  of  defendant 
0.  H.  Newall  for  a  new  trial  of  said  cause,  to  be  served  on  attorneys 
for  respondents  and  filed  in  the  office  of  the  clerk  of  the  supreme 
court  (except  one  of  the  copies  served  on  each  of  the  attorneys  for 
respondent),  need  not  have  attached  thereto  any  of  the  exhibits 
referred  to  in  the  cross-complaint  and  in  the  bill  of  exceptions  of 
defendant  O.  H.  Newall  on  motion  for  new  trial  and  on  appeal  from 
the  judgment  entered  in  the  said  cause,  which  consists  of  maps,  dia- 
grams, and  photographs. 

That  one  of  said  copies  to  be  served  on  each  of  the  attorneys  for 
■respondents  shall  contain  duplicates  of  all  such  maps,  diagrams,  and 
photographs,  similar  to  those  inserted  in  the  original  certified  tran- 
script on  appeal,  and  reference  to  said  maps,  diagrams,  and  photo- 
graphs, as  being  in  said  original  certified  transcript  shall  be  made 
in  the  other  copies. 

Dated  July  23,  1900.  Beatty,  C.  J. 


Ch.  CXLIII.]  ORDERS,    STIPULATIONS,    REMITTITUR.  1931 

FORM   No.  1264 — Stipulation   consolidating  various  causes  on   appeal. 
(In  Burke  v.  Maguire,  154  Cal.  456;  98  Pac.  21.) 

[Title  of  court,  and  titles  of  various  causes,  separately  given,  with 
number  of  each.] 

It  is  hereby  stipulated  and  agreed  by  and  between  the  parties  to 
the  above-entitled  actions,  that  the  appeals  taken  by  each  of  the 
plaintiffs  in  said  actions  to  the  supreme  court  of  the  state  of  Califor- 
nia from  the  judgments  made  and  entered  by  the  superior  court  of 
the  city  and  county  of  San  Francisco,  state  of  California,  against  the 
said  plaintiffs,  and  each  of  them,  and  in  favor  of  said  defendants 
therein,  and  each  of  them,  may  be  heard  and  determined  by  this 
court  upon  one  transcript  on  appeal,  which  transcript  shall  be  filed 
in  the  said  action  entitled  "Annie  Burke,  plaintiff,  v.  James  Maguire, 
administrator  of  the  estate  of  Bridget  McDermott,  deceased,  defend- 
ant," and  that  said  transcript  on  appeal  shall  contain — 

1.  The  record  on  appeal  prescribed  by  law; 

2.  A  copy  of  so  much  of  the  original  complaint  in  said  action  as 
differs  from  the  last  amended  complaint,  and  the  admissions  that 
the  original  complaint  was  verified; 

3.  The  first  amendment  to  the  original  complaint; 

4.  A  copy  of  this  stipulation,  and  the  order  made  by  the  foregoing- 
entitled  court  thereon. 

Dated  this  28th  day  of  March,  1906. 

Sullivan  &  Sullivan,  and 
Theo.  J.  Roche, 
Attorneys  for  the  plaintiffs  in  each 
of  the  foregoing-entitled  actions. 
George  C.  Ross,  and 
John  J.  Barrett, 
Attorneys   for   the   defendants   in 
each  of  said  entitled  actions. 
FORM   No.  1265 — Remittitur. 

(In  Lowe  v.  Ozmun,  3  Cal.  App.  387;  86  Pac.  729.) 

[Title  of  court  and  cause.] 

On  appeal  from  the  superior  court  in  and  for  the  county  of  Los 

Angeles. 

And  now,  on  this  day,  this  cause  being  called,  and  having  been 
heretofore  submitted  and  taken  under  advisement,  and  all  and  singu- 
lar the  law  and  premises  having  been  fully  considered,  the  opinion 


1932  NEW  TRIALS,  APPEALS,  ETC.  [Tit.  XVII. 

of  the  court  herein  is  delivered  by  McFarland,  J.     We   concur: 
Henshaw,  J.,  Temple,  J. 

Whereupon,  it  is  adjudged  and  decreed  by  the  court  that  the  judg- 
ment of  the  superior  court  in  and  for  the  county  of  Los  Angeles  in 
the  above-entitled  cause  be  and  the  same  is  hereby  reversed,  with 
direction  to  the  court  below  to  overrule  the  demurrer  to  the  com- 
plaint, appellant  to  recover  costs  of  appeal  herein. 

I,  George  W.  Root,  clerk  of  the  supreme  court  of  the  state  of  Cali- 
fornia, do  hereby  certify  that  the  foregoing  is  a  true  copy  of  an  orig- 
inal judgment  in  the  above-entitled  cause  made  and  rendered  and 
entered  on  the  11th  day  of  September,  1902,  and  now  remaining  of 
record  in  my  office. 

Witness  my  hand  and  the  seal  of  the  court,  annexed  at  my  office, 
this  13th  day  of  October,  A.  D.  1902. 

[Seal.]  George  W.  Root,  Clerk. 

By  A.  E.  Hornlein,  Deputy. 

[Endorsement  of  filing,  docketing,  and  entry  upon  the  records  of 
the  trial  court.] 

Form  of  appeal  bond  on  motion  to  dismiss  the  appeal  for  the  reason  the  appeal 
bond  is  not  in  double  the  amount  of  the  award:  Chicago  etc.  R.  Co.  v.  Abilene  Town- 
site  Co.,  42  Kan.  98,  21  Pac.  1112. 

Form  of  appeal  bond  in  an  appeal  from  a  judgment  rendered  by  a  justice  of  the 
peace  of  an  unorganized  county:  Smith  v.  Nescatunga  Town  Co.,  36  Kan.  758,  14 
Pac.  246. 

Form  of  appeal  bond  where  a  motion  to  dismiss  the  appeal  was  made  upon  the 
ground  that  the  appeal  was  not  taken  and  perfected  according  to  law:  Knight  v. 
People,  11  Colo.  309,  17  Pac.  902. 

Form  of  undertakings  on  appeal  where  motion  to  dismiss  appeal  was  made: 
Sharon  v.  Sharon,  68  Cal.  329,  9  Pac.  1S7,  188. 

Form  of  motion  to  dismiss  an  appeal  upon  the  ground  that  the  date  of  the  judg- 
ment recited  in  the  appeal  bond  did  not  correspond  with  the  date  on  which  the 
judgment  was  rendered:    Shuster  v.  Overturf,  42  Kan.  669,  22  Pac.  718. 

§507.     ANNOTATIONS. — New  trials  and  appeals. 

1.  New  trial. — Grounds  of  motion  must  be  specified. 

2.  Motion  heard  at  subsequent  term  of  court. 

3.  Perjury  as  ground  for  new  trial. — Nebraska  statute. 

4.  Effect  of  motion  for  new  trial  granted. 

5.  Appeal. — Grounds  of  motion  on  review. 

6,  7.  Order  or  judgment  nunc  pro  tunc  providing  for  answer  to  amendment 

8.  Rule  as  to  reversal  of  judgment  for  defects  in   complaint. 

9.  Motion   to   dismiss. — When  should   be  overruled. 

10.  Order  striking  out  pleading. 

11.  Order  granting  nonsuit. 

12.  Review  of  orders  made  upon  motions. 

13.  Matters  not  considered  on  appeal  from  order. 
14,  15.  Sufficiency  of  complaint. — When  not  considered. 

16.  Petition  when  liberally  construed  on  appeal. 


Ch.  CXLIII.] 


ANNOTATIONS. 


1933 


17.  When  complaint  Is  not  vulnerable  to  attack  on  appeal. 

18.  Reversal  for  fundamental  error. 

19.  Non-prejudicial  ruling. 
W,  21.  Parties  to  appeal. 

22.  "Adverse  party." 
23,  24.  Undertaking  on  appeals  from  judgment  and  order  denying  new  triaL 

25.  Separate  undertakings. 

26.  Classes  of  undertakings  on  appeal. 

27.  Non-appealable  order. — Striking  out  pleading. 

28.  Failure  to  answer. — When  deemed  waived. 

29.  Deficiencies  of  complaint  supplied  by  the  answer. 

30.  Trial  de  novo  of  equity  case  in  supreme  court. 

31.  Decisions  on  all  questions  not  required. 

32.  Modification  of  judgment  for  excess. 

33.  Transcript  should  contain  notice  of  appeal. 

34.  Transcript  not  required  to  include  the  undertaking. 

35.  Alternative  method  of  appeal. — California. 

36.  Appellant  as  principal  in  appeal  bond. 


1.  NEW  TRIAL. — Grounds  of  motion 
must  be  specified.— It  is  a  general  rule 
that,  to  enable  the  court  on  appeal  to 
review  the  action  of  the  court  below 
upon  a  motion,  the  grounds  or  the  par- 
ticular reasons  of  the  motion  must  be 
specified:  Williams  v.  Hawley,  144  Cal. 
97,  101,  77  Pac.  762,  763. 

Reference  to  papers  on  file  as  to 
grounds. — It  is  not  necessary  to  state 
the  grounds  at  length.  The  moving 
party  must  in  some  way  inform  the 
court  of  the  grounds  of  the  motion,  and 
this  may  be  done  as  well  by  reference 
to  some  paper  on  file  in  the  action  in 
which  the  grounds  are  stated  as  by  oral 
statement  thereof  upon  the  hearing: 
Williams  v.  Hawley,  144  Cal.  97,  99,  77 
Pac.   762,   763. 

Sufficient  statement  of  grounds. — 
Grounds  of  motion  for  a  judgment  on 
the  pleadings  are  sufficiently  stated  as 
follows:  That  the  motion  will  be  made 
"upon  the  pleadings,  papers,  files,  and 
records  in  said  action,  and  upon  the 
ground  that  the  answer  on  file  herein 
constitutes  no  defense  to  the  cause  of 
action  or  any  portion  thereof  stated  in 
the  complaint":  Hearst  v.  Hart,  128 
Cal.  327,  32S,  60  Pac.  846. 

2.  Motion  heard  at  subsequent  term  of 
court. — A  motion  to  set  aside  an  order 
sustaining  defendant's  motion  for  new 
trial  filed  during  the  term  in  which  the 
order  was  made,  but  heard  and  deter- 
mined at  the  following  term  of  court 
upon  a  continuance;  held  proper: 
Chandler  v.  Gloyd,  217  Mo.  394,  116  S. 
W.  1073,  1074. 

3.  Perjury  as  ground  for  new  trial. — 
Nebraska   statute. — Under  the   Nebraska 


statute,  a  judgment  may  be  vacated  and 
a  new  trial  awarded  for  the  perjury  of 
the  successful  party,  either  by  a  pro- 
ceeding under  section  602  of  the  code  or 
by  an  independent  suit  in  equity:  Munro 
v.  Calahan,  55  Neb.  75,  75  N.  W.  151,  70 
Am.  St.  Rep.  366;  Barr  v.  Post,  59  Neb. 
361,  363,  80  N.  W.  1041,  SO  Am.  St.  Rep. 
680;  Wirth  v.  Weigand,  85  Neb.  115,  122 
N.  W.  714,   715. 

4.  Effect  of  motion  for  new  trial 
granted.— A  motion  for  a  new  trial  after 
the  entry  of  judgment  does  not,  upon 
being  granted,  ipso  facto,  vacate  the 
judgment.  The  motion  for  a  new  trial 
should  not,  therefore,  be  entertained  un- 
less coupled  with  a  motion  to  vacate  the 
judgment:  Whitney  v.  Karner,  44  Wis. 
563;  Bailey  v.  Costello,  94  Wis.  87,  93  N. 
W.  663.  The  same  rule  applies  in  a  pro- 
ceeding for  an  order  vacating  an  order 
for  deficiency  in  foreclosure:  Homestead 
Land  Co.  v.  Saveland,  139  Wis.  663,  121 
N.  W.  892,  893. 

5.  APPEAL. — Grounds  of  motion  on 
review. — All  the  grounds  alleged  in  a 
motion  for  a  new  trial  are  before  the 
appellate  court  when  the  case  is  up  for 
review,  though  the  trial  court  sustain 
the  motion  on  but  one  of  the  grounds, 
and  that,  perchance,  one  in  which  there 
was  no  error:  Whitesett  v.  People's  Na- 
tional Bank,  138  Mo.  App.  81,  119  S.  W. 
999,  1001;  Ittner  v.  Hughes,  133  Mo.  679, 
34  S.  W.  1110;  Hewitt  v.  Steele,  US  Mo. 
463,  24  S.  W.  440;  Bank  v.  Armstrong, 
92  Mo.  265,  4  S.  W.  720;  State  v.  Adams, 
84   Mo.    310. 

6.  Order  or  judgment  nunc  pro  tunc 
providing  for  answer  to  amendment— 
The  judgment  on  appeal  may  direct  the 


1934 


NEW  TRIALS,  APPEALS,  ETC. 


[Tit.  XVII. 


lower  court  to  cause  an  answer  to  an 
amendment  to  be  filed  in  accordance 
with  an  order  made  at  the  trial,  and  as 
of  the  date  when  said  order  was  made. 
The  court  on  appeal  may  affirm  the 
judgment  and  direct  that  the  record  be. 
thus  perfected  upon  the  issues:  Cum- 
mings  v.  Roeth,  10  Cal.  App.  144,  101 
Pac.  434,  438;  Alameda  County  v. 
Crocker,  125  Cal.  101,   57  Pac.  766. 

7.  Failure  to  file  an  answer  to  an 
amendment  to  the  complaint  is  not 
ground  for  reversal  of  the  judgment. 
The  record  can  still  be  corrected  to  con- 
form with  the  order  permitting  the 
amendment:  Cummings  v.  Roeth,  10 
Cal.  App.  144,  101  Pac.  434,  436;  French 
v.  McCarthy,  125  Cal.  508,  58  Pac.  154. 

8.  Rule  as  to  reversal  of  judgment  for 
defects  In  complaint. — Judgment  will 
not  be  reversed  for  defects  in  the  com- 
plaint which  fall  short  of  an  entire  ab- 
sence of  material  and  indispensable 
matter:  Hallock  v.  Jaudin,  34  Cal.  167, 
174. 

9.  Motion  to  dismiss. — When  should  be 
overruled. — A  motion  to  dismiss  an  ap- 
peal on  the  ground  that  the  same  should 
have  been  preceded  by  a  motion  for  new 
trial  in  the  court  below,  will  be  over- 
ruled where  the  cause  was  submitted  in 
the  trial  court  on  an  agreed  statement 
of  facts.  In  such  a  case  the  motion  for 
a  new  trial  is  unnecessary:  Nichols  v. 
Trueman,  80  Kan.  89,  101  Pac.  633,  634; 
Atkins  v.  Nordyke-Marmon  Co.,  60  Kan. 
354,   56  Pac.  533. 

10.  Order  striking  out  a  pleading  is 
reviewable  on  an  appeal  from  the  judg- 
ment: Clifford  v.  Adams,  84  Cal.  528, 
532,  24  Pac.  292;  Alpers  v.  Bliss,  145 
Cal.  565,   569,  79  Pac.   171. 

11.  Order  granting  a  nonsuit  may  be 
reviewed  on  an  appeal  from  the  judg- 
ment based  on  such  order,  or  on  an 
order  denying  a  new  trial:  Converse  v. 
Scott,   137  Cal.  239,   244,  70  Pac.   13. 

12.  Review  of  orders  made  upon  mo- 
tions.—Where  a  specific  kind  of  relief 
is  sought  by  motion, — as,  for  example, 
where  a  party  by  motion  seeks  to  set 
aside  a  judgment  procured  by  fraud, — it 
is  essential  to  present  a  review  in  the 
appellate  court  of  the  order  made  there- 
on, that  the  party  against  whom  the 
order  is  directed  preserve  an  exception 
at  the  time  of  the  ruling,  and  exem- 
plify the  same  to  the  appellate  court  by 
bill  of  exceptions  duly  filed.  This  rule 
obtains  as  a  prerequisite  to  the  right  of 


review  of  the  appellate  court,  and  arisea 
out  of  the  distinction  made  in  the  stat- 
utes between  an  appeal  from  a  ruling 
on  a  motion  and  an  appeal  from  a  judg- 
ment or  an  order  on  a  pleading;  the 
motion  itself  not  being  a  pleading  in 
the  strict  meaning  of  that  word:  Graff 
v.  Dougherty,  139  Mo.  App.  56,  120  S.  W. 
661,  663;  City  of  St.  Louis  v.  Brooks, 
107  Mo.  380,  384,  18  S.  W.  22;  Ecton  v. 
Kansas  City  etc.  R.  Co.,  56  Mo.  App. 
337;   Corby  v.   Tracy,   62  Mo.   511. 

13.  Matters  not  considered  on  appeal 
from  order. — Questions  relating  to  the 
sufficiency  of  a  complaint,  rulings  upon 
demurrers,  and  the  sufficiency  of  the 
findings  to  support  the  judgment  can  not 
be  considered  on  an  appeal  from  an  order 
denying  a  motion  for  a  new  trial:  Great 
Western  G.  Co.  v.  Chambers,  153  Cal.  307, 
310,  95  Pac.  151,  (for  accounting) ;  Swift 
v.  Occidental  M.  Co.,  141  Cal.  161,  74  Pac. 
700;  Holmes  v.  Warren,  145  Cal.  457,  78 
Pac.  954;  Brownlee  v.  Reiner,  147  Cal. 
641,  82  Pac.  324;  County  Bank  v.  Jack, 
148  Cal.  437,  83  Pac.  705,  113  Am.  St. 
Rep.  285;  Wheeler  v.  Bolton,  92  Cal. 
159,  28  Pac.  558;  Brison  v.  Brison,  90  Cal. 
323,   27  Pac.   186. 

14.  Sufficiency  of  complaint. — When 
not  considered. — The  appellate  court  will 
not  consider  the  sufficiency  of  a  com- 
plaint on  an  appeal  from  an  order  de- 
nying a  new  trial:  Naylor  &  Norlin  v. 
Lewiston  etc.  El.  R.  Co.,  14  Idaho  789, 
96  Pac.  573,  575,  (to  foreclose  lien  for 
labor  performed  and  materials  fur- 
nished), citing  Swett  v.  Gray,  141  Cal. 
63,  74  Pac.  439;  Swift  v.  Occidental  M. 
etc.  Co.,  141  Cal.  161,  74  Pac.  700;  Bode 
v.  Lee,  102  Cal.  583,  36  Pac.  936;  Alpers 
V.  Hunt,  86  Cal.  78,  24  Pac.  846,  9  L.  R. 
A.   483,    21   Am.    St.   Rep.    17. 

15.  The  sufficiency  of  the  complaint 
will  be  considered  only  upon  appeal 
from  the  judgment:  Naylor  &  Norlin 
v.  Lewiston  etc.  El.  R.  Co.,  14  Idaho 
789,    96    Pac.    573,    575. 

16.  Petition  when  liberally  construed 
on  appeal. — After  proof  has  been  ad- 
duced on  both  sides  of  a  controverted 
issue,  and  a  final  decree  entered,  the 
petition,  when  not  assailed  by  motion  or 
demurrer,  should  be  liberally  construed 
by  the  reviewing  court  and  sustained,  if 
the  essential  elements  of  the  plaintiit's 
case  may  be  implied  from  its  terms  by 
reasonable  intendment:  Kimmerly  v.  Mc- 
Michael.  83  Neb.  789,  120  N.  W.  487,  488, 
citing  Sorensen  v.  Sorensen,  68  Neb.  483, 


Ch.  CXLIII.] 


ANNOTATIONS. 


1935 


94  N.  W.  540,  98  N.  W.  837,  100  N.  W. 
930,  103  N.  W.  455;  Western  Travelers 
A.  A.  v.  Tomson,  72  Neb.  661,  101  N.  W. 
341,  103  N.  W.  695,  105  N.  W.  293;  Chi- 
cago etc.  R.  Co.  v.  Kerr,  74  Neb.  1,  104 
N.  W.  49;  Bennett  v.  Bennett,  65  Neb. 
432,  91  N.  W.  409,  96  N.  W.  994;  Omaha 
Nat.  Bank  v.  Kiper,  60  Neb.  33,  82  N. 
W.  102;  American  Fire  Ins.  Co.  v.  Land- 
fare,  56  Neb.  482,  76  N.  W.  1068. 

17.  When  complaint  is  not  vulnerable 
to  attack  on  appeal Although  a  com- 
plaint may  in  fact  be  bad  in  substance, 
if  the  object  of  the  plaintiff  can  be  as- 
certained from  the  allegations  of  his 
complaint,  and  the  allegations  are  suffi- 
cient, the  court  has  power  to  grant  the 
relief  demanded,  and,  where  it  has  juris- 
diction of  the  parties,  the  judgment  is 
not  vulnerable  to  attack:  Lemon  v.  Hub- 
bard, 10  Cal.  App.  471,  102  Pac.  554,  555, 
citing  Brush  v.  Smith,  141  Cal.  470,  75 
Pac.  55;  Crane  v.  Cummings,  137  Cal. 
202,  69  Pac.  984. 

18.  Reversal  for  fundamental  error. — 
If  the  records  should  disclose  that  the 
complaint  is  not  sufficient  to  support  a 
judgment,  the  rendition  of  a  judgment 
thereon  would  constitute  fundamental 
error  as  manifest  in  the  record,  and  the 
judgment  should  be  reversed  in  the  ap- 
pellate court,  even  if  the  point  was  not 
raised  by  the  appellant:  Sandovial  v. 
Randolf  (Ariz.),  95  Pac.  119,  120,  (to  re- 
cover moneys  held  for  plaintiff's  use  and 
benefit). 

19.  Non-prejudicial  ruling. — The  over- 
ruling of  a  demurrer  to  the  complaint 
on  the  ground  of  misjoinder  of  parties 
plaintiff  is  not  ground  for  reversal  of  a 
judgment  where  the  defendants  were 
not  prejudiced  thereby:  Tooney  v.  Knob- 
lock,  8  Cal.  App.  585,  97  Pac.  529,  530; 
Woollacott  v.  Meekin,  151  Cal.  701,  91 
Pac.  612;  Daly  v.  Ruddell,  137  Cal.  674, 
70  Pac.   7S4. 

20.  Parties  to  appeal. — The  parties  to 
a  motion  for  a  new  trial  are  the  only 
necessary  parties  to  an  appeal  fi-om  an 
order  denying  the  motion:  Herriman  v. 
Menzies,  115  Cal.  16,  25,  44  Pac.  660,  46 
Pac.  730,  56  Am.  St.  Rep.  82;  Johnson  v. 
Phenix  Ins.  Co.,  146  Cal.  571,  575,  80 
Pac.   719. 

21.  Parties  to  the  record  only  may  ap- 
peal: Elliott  v.  Superior  Court,  144  Cal. 
501,  507,  77  Pac.  1109.  But  see  as  to 
limitations  of  this  rule,  Estate  of  Crooks, 
125  Cal.  459.  462,  58  Pac.  89;  Estate  of 
Meade  (Cal.),  49  Pac.  5.     And  the  notice 


of  appeal  need  be  served  only  upon  a  de- 
fendant who  has  been  served  with  sum- 
mons or  appeared  in  the  action:  Clarke 
v.  Mohr,  125  Cal.  540,  543,  58  Pac.  176. 

22.  An  "adverse  party"  is  any  party 
whose  interest  in  the  subject-matter  of 
appeal  is  adverse  to,  or  will  be  affected 
by,  a  reversal  or  modification  of  the 
judgment  or  order  appealed  from:  Sen- 
ter  v.  De  Bernal,  38  Cal.  637,  640;  Har- 
per v.  Hildreth,  99  Cal.  265,  267,  33  Pac. 
1103;  Mohr  v.  Byrne,  132  Cal.  250,  251, 
64  Pac.  257. 

23.  Undertaking  on  appeals  from  Judg- 
ment and  order  denying  new  trial. — The 
undertaking  must  refer  to  each  of  the 
appeals  as  distinctly  as  if  there  were 
separate  appeals, — one  from  the  order, 
the  other  from  the  judgment, — and  as  if 
each  was  accompanied  by  an  undertak- 
ing: Granger  v.  Robinson,  114  Cal.  631, 
632,  46  Pac.  604;  Corcoran  v.  Desmond, 
71  Cal.  100,   102,  11  Pac.   815. 

24.  Where  the  undertaking  insuffi- 
ciently refers  to  either  the  judgment  or 
the  order  denying  new  trial  appealed 
from,  the  undertaking  is  ineffectual,  and 
the  appeal  will  be  dismissed:  McCor- 
mick  v.  Belvin,  96  Cal.  182,  1S3,  31  Pac. 
16;  Carter  v.  Butte  Creek  G.  M.  &  P. 
Co.,   131  Cal.   350,   351,   63   Pac.    667. 

25.  Separate  undertakings  are  required 
where  an  appeal  is  from  a  judgment 
and  any  order  or  orders  other  than  an 
order  denying  a  new  trial:  Sharon  v. 
Sharon,  6S  Cal.  326,  332,  9  Pac.  187. 
And  this  rule  is  not  varied  when  a  non- 
appealable order  is  joined  in  the  notice 
with  an  appealable  one:  Estate  of 
Kasson,   135  Cal.   1,   2,   66   Pac.   S71. 

26.  Classes  of  undertakings  on  appeal. 
— Under  the  California  practice,  there 
are  three  classes  of  undertakings  used 
on  appeal, —  one,  under  sections  940  and 
941  of  the  Code  of  Civil  Procedure, 
which  must  be  for  the  penal  amount  of 
$300,  to  pay  damages  and  costs  which 
may  be  awarded,  etc.,  and  which  must 
be  filed  within  five  days  after  service 
of  the  notice  of  an  appeal,  to  make  the 
appeal  effectual,  unless  a  deposit  of 
money  be  made  in  lieu  thereof  or  such 
undertaking  is  waived.  The  second  class 
of  undertakings,  under  section  942  of 
the  same  code,  is  an  additional  under- 
taking filed  for  the  purpose  of  staying 
execution  of  a  judgment  or  order  direct- 
ing the  payment  of  money.  Under  this 
undertaking  the  sureties  are  to  be  bound 
in    double   the    amount   of   the   judgment 


1936 


NEW  TRIALS,  APPEALS,  ETC. 


[Tit.  XVII. 


or  order,  etc.  A  third  class,  similar  in 
purpose  to  the  second  class,  under  sec- 
tion 943  of.  the  same  code,  is  used  to 
obtain  a  stay  of  execution  in  case  of  an 
appeal  from  a  judgment  or  order  direct- 
ing the  assignment  or  delivery  of  docu- 
ments: For  the  distinctions  between 
the  classes  of  undertakings,  see  Duffy 
v.  Greenebaum,  72  Cal.  157,  159,  12  Pac. 
74,  13  Pac.  323;  Corcoran  v.  Desmond,  71 
Cal.  100,  104,  11  Pac.  815;  In  re  Schedel, 
69  Cal.  241,  243,  10  Pac.  234;  Owens  v. 
Pomona  L.  &  W.  Co.,  124  Cal.  331,  334, 
57  Pac.  71. 

27.  Non-appealabie  order.  —  Striking 
out  pleading. — An  appeal  does  not  gen- 
erally lie  from  an  order  striking  out  a 
pleading:  Allen  v.  Church,  101  Iowa 
116,  70  N.  W.  127;  Allen  v.  Cook  (Iowa), 
71  N.  "W.  534;  Jordan  Co.  v.  Sperry  Bros., 
141  Iowa  225,  119  N.  W.  692,  693. 

28.  Failure  to  answer. — When  deemed 
waived. — Where  the  plaintiff  fails  to 
take  judgment  against  defendant  upon 
failure  of  the  defendant  to  file  an 
answer,  and  goes  to  trial,  the  parties 
thereby  treating  the  cause  as  if  at  issue; 
held,  that  the  plaintiff  can  not  take  ad- 
vantage on  appeal  of  the  failure  to 
answer:  Ward  v.  Blythe  (Ark.),  122  S. 
W.  508;  Pembroke  v.  Logan,  71  Ark.  364, 
74  S.  W.  297;  Cribbs  v.  Walker,  74  Ark. 
104,   85  S.  W.  244. 

29.  Deficiencies  of  complaint  supplied 
by  the  answer. — Where  any  deficiencies 
of  the  complaint  are  supplied  by  the 
allegations  of  the  answer,  and  thereby 
all  material  issues  are  clearly  presented 
by  the  pleadings,  such  defects  can  not 
be  said  to  result  in  prejudice  to  the  de- 
fendant in  review  on  appeal:  Lowe  v. 
Yolo  County  C.  W.  Co.,  8  Cal.  App.  167, 
96   Pac.   379,   381. 

30.  Trial  de  novo  of  equity  case  in 
supreme  court.— It  has  been  the  uniform 
ruling  of  the  supreme  court  of  the  state 
of  Washington  in  an  equity  case  which 
is  tried  de  novo  in  that  court,  that  the 
case  will  be  tried  upon  the  testimony, 
and  the  pleadings  will  be  considered 
amended  to  meet  the  requirements  of 
the  testimony.  In  equity  cases,  if  evi- 
dence is  introduced  without  objection 
which  would  entitle  a  party  to  relief,  the 
decision  would  be  based  upon  it,  without 
regard  to  the  pleadings,  which  are 
treated  as  amended:  Ness  v.  Bothell, 
53  Wash.  27,  101  Pac.  702,  703;  Davis  v. 
Hinchcliffe.    7    Wash.    199,    34    Pac.    915; 


Cunningham  v.   Lakin,   60  Wash.  394,   97 
Pac.   447. 

31.  Decisions  on  all  questions  not  re- 
quired.— The  defendant  is  entitled  to  the 
decision  of  the  appellate  court,  where  an 
appeal  is  made  from  a  judgment  for 
defendant  sustaining  a  demurrer,  on  all 
questions  presented  by  the  demurrer  and 
necessary  to  the  decision  made:  Burke 
v.  Maguire,  154  Cal.  456,  98  Pac.  21,  23. 
See  White  v.  Merrill,  82  Cal.  14,  22  Pac. 
1129;  Wakeham  v.  Barker,  82  Cal.  46,  22 
Pac.  1131;  Wilson  v.  Carter,  117  Cal.  53, 
48  Pac.  983. 

32.  Modification  of  judgment  for  ex- 
cess.— Where  a  judgment  is  rendered  in 
the  trial  court  for  an  amount  in  excess 
of  the  amount  to  which  plaintiff  is  en- 
titled, and  no  offer  to  remit  is  made  in 
the  court  below,  the  appellate  court,  on 
appeal,  may  render  such  judgment  as 
should  have  been  rendered  in  the  court 
below:     Duggan  v.  Cole,  2  Tex.  381,  397. 

33.  Transcript  should  contain  notice  of 
appeal:  Woodside  v.  Hewel,  107  Cal. 
141,   143,  40  Pac.   103. 

34.  Transcript  not  required  to  include 
the  undertaking. — The  undertaking  on 
appeal  should  not  be  embodied  in  the 
transcript  on  appeal:  San  Francisco  etc. 
R.  Co.,  77  Cal.  297,  298,  19  Pac.  517. 

35.  Alternative  method  of  appeal. — 
California. — Under  code  provisions  en- 
acted in  1907  (Stats.  1907,  p.  753),  an 
alternative  method  of  appeal  was  estab- 
lished under  which  the  mere  filing  of 
a  notice  of  appeal  within  a  period  speci- 
fied is  sufficient.  This  method  of 
appeal  has  been  passed  upon  in  the 
following  cases:  United  Investment  Co. 
v.  Los  Angeles  Interurban  R.  Co.,  10 
Cal.  App.  175.  179,  101  Pac.  543;  Ford 
&  Sanborn  v.  Braslan  Seed  Growers' 
Co.,  10  Cal.  App.  762,  766,  103  Pac.  946; 
Modoc  Co-operative  Association  v.  Por- 
ter, 11  Cal.  App.  270.  271,  104  Pac.  710; 
Reclamation  Dist.  No.  70  v.  Sherman, 
11  Cal.  App.  399,  403,  105  Pac.  277,  (in 
this  latter  case  rule  7,  as  prescribed  by 
the  supreme  court,  is  held  applicable  to 
appeals  under  the  alternative  method; 
for  this  rule,  see  144  Cal.  xliv,  78  Pac. 
ix);  John  Brickell  Co.  v.  Sutro,  11  Cal. 
App.  460,  462,  105  Pac.  948,  949,  (holding 
that  service  of  the  notice  under  this 
method  of  appeal  ij  not  required);  Es- 
tate of  Brewer.  156  Cal.  89,  91-93,  103 
Pac.  486,  (holding  that  this  method  is  ap- 
plicable   to    probate    appeals) ;    Dane    v. 


Ch.  CXLIV.]                    CERTIFICATION  OF  RECORDS.                                  1937 

Tanner,    156   Cal.    135,    137,    138,    103   Pac.  Darling,  9  Cal.  278;  Adler  v.  Staude,  136 

846;    Williams   v.    Lane    (Cal.),    109    Pac.  Cal.    184,    68    Pac.    599;    Russell    v.    Chi- 

873,  874;  Brode  V.  Goslin  (Cal.),  112  Pac.  cago  etc.  R.  Co.,  37  Mont.  1,  94  Pac.  488; 

280,  281,   (as  to  time  of  filing  notice).  Drouilhat  v.   Rottner,    13   Ore.    495.     The 

36.  Appellant    as    principal     in     appeal  appellant    is    sufficiently    bound    by    the 

bond  or  undertaking. — It  is  not  essential  judgment:     Butterfield  v.  Mountain  I.   & 

that   the   appellant    unite    in    the    under-  C.-S.  Co.,  11  Utah  194,  39  Pac.  824.     See 

taking  unless   the  statute  so   requires, —  the    discussion    of    the    subject    in    the 

the    instrument    being     an     independent  principal      and     dissenting     opinions     in 

contract  upon   the   part  of   the   sureties:  Storz  v.   Finkelstein,   50   Neb.   186,   69  N. 

Curtis  v.    Richards,   9   Cal.    33;   Tissot  v.  W.  856,   859. 


CHAPTER   CXLIV. 

Certification  of  Public  Records. 

Page 
Form  No.  1266.  Authentication  of  records  and  judicial  proceed- 
ings of  a  court  of  record  of  a  sister  state 

or  territory  of  the  United  States 1937 

Form  No.  1267.  Authentication  by  copy  of  non-judicial  records     1938 

Form  No.  1268.  Certificate  of  presiding  judge 1939 

Form  No.  1269.  Certificate  to  genuineness  of  signature  of  su- 
perior judge.     (Annexed  to  certificate  as  in 

the  preceding  form.)    1939 

Form  No.  1270.  Authentication  of  copy  of  a  judicial  record...     1940 
Form  No.  1271.  Authentication   of   copy   of   a   judicial    record 

of  a  foreign  country 1940 

Form  No.  1272.  Authentication  of  a  document  in  a  sister  state 

or  territory  1941 

Form  No.  1273.  Authentication  of  a  document  in  the  office  of 
a  department  of  the  United  States.  (An- 
nexed to  copy  of  document.) 1942 

Form  No.  1274.  Authentication  of  a  public  record  of  a  private 

writing.     (Annexed  to  copy  of  record.) 1942 

Form  No.  1275.  Certified  copy  of  order 1942 

Form  No.  1276.  Certificate    to    signature    and    attestation    of 

county  clerk  1943 

FORM  No.  1266 — Authentication  of  records  and  judicial  proceedings  of  a 
court  of  record  of  a  sister  state  or  territory  of  the  United 
States. 

[Insert  copy  of  record.] 
State  [or  territory]  of  ,  1 

County  of  .  j 

I,   M.  N.,   clerk   of  the    [giving  name  of  court],   in   the   county 
of  ,  in  the  state  [or  territory]  of  ,  do  certify  that  the 


19;38  CERTIFICATION  OF  RECORDS.  [Tit.  XVII. 

foregoing  are  full,  true,  and  correct  copies  of  the  original  records, 
proceedings,  orders,  and  of  the  judgment,  in  an  action  [or  proceed- 
ing] in  said  court  in  which  A.  B.  is  plaintiff  [or  petitioner]  and  C.  D. 
is  defendant  [or  respondent]. 

Witness  my  hand  and  the  seal  of  said  court,  this  day  of 

,  19     . 

[Seal.]  M.  N.,  Clerk  of  [naming  the  court]. 

[Certificate  as  to  genuineness  of  signature.] 

I,  S.  T.,  presiding  judge  of  [naming  the  court] ,  certify  that  M.  N., 
whose  signature  is  annexed  to  the  above  certificate,  was  at  the  date 
thereof  a  clerk  of  the  [name  the  court]  ;  that  said  signature  is  gen- 
uine, and  that  the  official  acts  and  doings  of  M.  N.  as  said  clerk  are 
entitled  to  full  faith  and  credit;  and  I  further  certify  that  the  fore- 
going attestation  by  said  clerk  is  in  due  form. 

Witness  my  hand,  this  day  of  ,19     . 

S.  T.,  Judge  of  [naming  court]. 

FORM   No.  1267 — Authentication  by  copy  of  non-judicial  records. 

[Insert  copy  of  record.] 
State  [or  territory]  of 
Office  of  Recorder  [or  registrar]  of  Deeds 

V   eg 

of  the  county  of  ,  in  the  state 

[or  territory]  of 

I,  X.  Y.,  the  recorder   [or  registrar]    of  deeds  of  said  county  of 
,  in  the  state  [or  territory]  of  ,  certify  that  I  am  such 

recorder  [or  registrar],  and,  as  such,  the  legal  custodian  of  the 
records  and  office  books  kept  in  the  office  of  the  county  recorder  of 
the  county  of  ,  in  the  state  [territory]  of  ;  that  the  fore- 

going is  a  full,  true,  and  correct  copy  of  the  record  in  said  office  of  a 
deed  [or  other  instrument,  stating  what  it  is],  and  of  the  whole  of 
the  original  records  of  such  deed  [or  instrument,  stating  what  it  is] 
of  record  in  my  office  as  such  county  recorder. 

Witness  my  hand  [and  seal  of  office,  if  there  be  such  seal;  if  not,  so 
state  and  certify],  at  ,  in  said  county  of  ,  in  the  state  [or 

territory]  of  ,  this  day  of  ,  19     . 

X.  Y.,  Recorder  [or  registrar]  of  Deeds 
of  the  county  of  ,  in  the  state 

[or  territory]   of 


Ch.  CXLIV.]  CERTIFICATES— FORMS.  1939 

[Certificate  of  secretary  of  state.] 


State  [or  territory]  of 

1  ss 


Office  of  Secretary  of  State.      j 

I,  M.  N.,  the  secretary  of  state  of  the  state  [or  territory]  of  , 

certify  that  X.  Y.,  whose  signature  is  affixed  to  the  foregoing  cer- 
tificate, was  at  the  date  of  such  certificate  the  county  recorder  [or 
registrar]  of  the  county  of  ,  in  the  state  [or  territory]  of  , 

and  the  keeper  of  the  records  and  office  books  kept  in  the  office  of 
the  county  recorder  [or  registrar]  of  said  county;  that  the  records 
and  books  in  said  office  are  not  judicial,  and  do  not  appertain  to  any 
court;  [certify  if  there  be  no  seal  of  such  office;]  and  I  further  cer- 
tify that  said  attestation  by  said  X.  Y.,  as  such  county  recorder  [or 
registrar],  is  in  due  form,  and  that  the  same  is  made  by  the  proper 
officer. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
great  seal  of  the  state  [or  territory]  of  ,  at  ,  this 

day  of  ,  19     . 

M.  N.,  Secretary  of  State  [or  territory]  of 

[Seal  of  state.] 

FORM   No.  1268 — Certificate  of  presiding  judge. 
State  [or  territory]  of 


County  of 

I,  S.  T.,  presiding  judge  of  [naming  the  court],  in  the  county  of 
,  in  the  state  [or  territory]  of  ,  certify  that  X.  Y.,  whose 

signature  is  subscribed  to  the  above  certificate,  was  at  the  date 
thereof  the  county  recorder  [or  registrar]  of  the  county  of  .  in 

the  state  [or  territory]  of  ;  that  such  office  does  not  appertain 

to  any  court;  that  the  said  attestation  and  signature  of  said  X.  Y. 
as  county  recorder  [or  registrar]  is  genuine  and  in  due  form,  and 
that  the  same  is  made  by  the  proper  officer. 

S.  T.,  Presiding  Judge  of  [name  of  court]. 

FORM   No.  1269 — Certificate  to   genuineness  of  signature  of  superior  judge. 
(Annexed  to  certificate  as  in  the  preceding  form.) 

State  of 


County  of 


I,  D.  E.,  clerk  of  the  superior  [or  district]   court  in  and  for  the 
county  of  ,  state  of  ,  do  hereby  certify  that  ,  whose 


1940  CERTIFICATION  OF  RECORDS.  [Tit.  XVII. 

genuine  signature  appeared  to  the  foregoing  certificate,  was,  at  the 
time  of  signing  the  same,  one  of  the  judges  of  the  superior  [or  dis- 
trict] court  of  the  state  of  ,  and  county  of  ,  duly  com- 
missioned and  qualified;  that  full  faith  and  credit  are,  and  of  right 
ought  to  be,  given  to  all  his  official  acts,  as  such,  in  all  courts  of 
record  and  elsewhere. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  and  affixed 
the  seal  of  said  court,  at  my  office,  this  day  of  ,  19     . 

D.  E.,  Clerk. 
[Seal.] 

FORM   No.  1270 — Authentication  of  copy  of  a  judicial  record. 
[Insert  copy  of  record.] 

State  of  , ")    g 

County  of  .4 

I,  D.  E.,  clerk  of  [state  the  name  of  the  court],  certify  that  I  am 
the  legal  custodian  of  the  original  records  of  [state  name  of  court]  ; 
that  the  foregoing  is  a  full,  true,  and  correct  copy  of  the  original 
[designate  the  record  by  name]  in  the  action  [or  proceeding]  entitled 
[here  give  title]. 

In  witness  whereof,  I  have  subscribed  this  certificate  and  affixed 

the  seal  of  said  court  thereto  at  .  this  day  of  ,  19     . 

D.  E.,  Clerk  of  [name  of  court], 
[Seal  of  court.] 

FORM   No.  1271 — Authentication   of   copy   of   a  judicial    record   of  a   foreign 
country. 

[Insert  copy  of  record.] 

[Name  of  state  or  country,  etc.] 

I  F.  H.,  clerk  of  [state  the  name  of  court] ,  certify  that  I  am  the 
legal  custodian  of  the  records  of  said  court ;  that  the  foregoing  is  a 
full,  true,  and  correct  copy  of  the  original  record  in  said  court  [des- 
ignate the  particular  record]  in  the  action  [or  proceeding]  entitled 
[here  state]. 

In  witness  whereof,  I  have  signed  this  certificate  and  have  affixed 
the  seal  of  said  court  thereto  at  ,  the  day  of  ,  19     . 

F.  H.,  Clerk  of  [name  of  court]. 

[Seal  of  court.] 


Ct.  CXLIV.]  CERTIFICATES— FORMS.  1941 

[Certificate  of  justice.] 

[Name  of  state  or  country,  etc.] 

I,  S.  T.,  the  [presiding]  judge  [or  justice]  of  [name  the  court], 
certify  that  F.  H.,  whose  signature  is  affixed  to  the  above  certificate, 
is  the  clerk  of  said  court,  and,  as  such,  the  legal  custodian  of  the 
records  thereof ;  that  the  signature  of  said  F.  H.  to  said  certificate  is 
his  genuine  signature;  and  that  the  foregoing  attestation  by  him  as 
such  clerk  is  in  due  and  proper  form. 

S.  T.,  [Presiding]  Judge  [or  justice]  of  [name  of  court]. 

[Certificate  of  consular  agent.] 
[Name  of  country.] 


Office  of  Consular  Agent. 

I,  V.  "W.,  certify  that  I  am  the  consular  agent  of  the  United  States 
to  [state  country],  and  that  the  signature  of  S.  T.  is  the  genuine 
signature  of  S.  T.,  the  [presiding]  judge  [or  justice]  of  [name  of 
court] . 

In  witness  whereof,  I  have  signed  this  certificate  and  affixed 
thereto  my  official  seal  of  office,  this  day  of  ,  19     ,  at 

V.  W.,  Consular  Agent  of  the  United  States  to 
[Seal.] 

FORM   No.  1272 — Authentication  of  a  document  in  a  sister  state  or  territory. 
[Certificate  of  custodian  of  document.] 

State  [or  territory]  of  ,  county  of 

Office  of  [name  of  office  in  full]. 

I,  M.  N.,  [giving  name  of  office,]  certify  that  I  am  the  legal  keeper 
[or  custodian]  of  the  original  document,  of  which  the  foregoing  is  a 
copy ;  that  said  copy  is  a  full,  true,  and  correct  copy  of  said  original 
document. 

[Date.]  M.  N.,  [giving  name  of  office]. 

[Certificate  of  secretary  of  state.] 

State   [or  territory]    of  . ") 

Office  of  Secretary  of  State.       j 

I,  R.  S.,  the  secretary  of  state  of  the  state  [or  territory]  of  , 

certify  that  the  foregoing  copy  of  [here  state]  is  duly  certified  by 

Jury's  PI.— 123. 


1942  CERTIFICATION  OF  RECORDS.  [Tit.  XVII. 

M.  N.,  the  [giving  name  of  office],  who  is  the  officer  having  the  legal 
custody  of  the  original  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused  the 
great  seal  of  the  state  [or  territory]  of  to  be  affixed,  this 

day  of  ,  19     .  R.  S., 

[Great  seal  of  state  or  territory.]  Secretary  of  State. 

FORM   No.  1273 — Authentication  of  a  document  In  the  office  of  a  department 
of  the   United  States.      (Annexed  to  copy  of  document.) 

[Certificate  of  custodian.] 

United  States  of  America, 


'.} 


/  ss. 
Office  of  [giving  name  of  office], 

I.  A.  B.,  [giving  name  of  office]  certify  that  I  am  the  legal  :us- 
todian  of  the  original  [naming  the  document],  and  that  the  fore- 
going copy  of  [designating  the  original  document],  is  a  full,  true, 
and  correct  copy  of  said  original  document. 

A.  B.  [giving  name  of  office]. 

FORM   No.  1274 — Authentication    of    a    public    record    of    a    private    writing. 

(Annexed  to  copy  of  record.) 
[Certificate  of  recorder  or  registrar.] 

Office  of  County  Recorder  [or  registrar] 

in  the  county  of  ,  state  of 

I,  D.  E.,  county  recorder  [or  registrar]  of  the  county  of  ,  in 

the  state  of  ,  certify  that  the  foregoing  copy  is  a  full,  true,  and 

correct  copy  of  the  original  record  in  my  office  as  such  county 
recorder  [or  registrar]  of  a  [giving  the  name  of  the  private  writing] 
and  of  the  certificate  of  acknowledgment  thereof.  I  certify  that  I 
am  the  legal  keeper  of  such  record. 

[Date.]  D.  E.,  County  Recorder  [or  registrar]  of  the 

county  of  ,  in  the  state  of 

FORM   No.  1275 — Certified  copy  of  order. 

[Title  of  court.] 

At  a  session  of  the  court,   held   at  the   courthouse   in   the 

county  of  ,  on  the  day  of  ,  in  the  year  19     . 

Present,   Hon.  ,   Superior   Judge;  ,   Clerk,   and  , 

Sheriff. 

[Title  of  cause  or  proceeding.] 


Ch.  CXLIV.]  CERTIFICATES— FORMS.  1943 

[Here  follows  copy  of  the  order  certified.] 

I,  ,  county  clerk  of  the  county  of  ,  state  of  ,  and 

ex-officio  clerk  of  the  court  in  and  for  said  county,  do  hereby 

certify  that  the  foregoing  is  a  full,  true,  and  correct  copy  of  an 
order  made  in  the  above-entitled  matter,  and  entered  in  the  minutes 
of  said  court  on  the  date  mentioned  in  the  caption  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  the  seal  of 
the  said  court,  this  day  of  ,  19     . 

[Seal.]  f  Clerk. 

By  ,  Deputy  Clerk. 

FORM  No.  1276 — Certificate  to  signature  and  attestation  of  county  clerk. 
State  of 


County  of 

I,  ,  one  of  the  judges  of  the  court  of  said  state  and 

county,  do  hereby  certify,  that  ,  whose  name  is  subscribed  to 

the  foregoing  certificate  of  attestation,  now  is,  and  was  at  the  time 
of  signing  and  sealing  the  same,   clerk   of  County,   state   of 

,  and  keeper  of  the  records  and  seal  thereof,  duly  elected  and 
qualified;  that  full  faith  and  credit  are  and  of  right  ought  to  be 
given  to  all  of  his  official  acts  as  such  in  all  courts  of  record  and 
elsewhere;  that  said  signature  is  genuine,  and  that  his  said  attesta- 
tion is  in  due  form  of  law  and  by  the  proper  officer. 

Given  under  my  hand  and  seal,  this  day  of  ,  19     . 

S.  T.,  Judge. 


TITLE  XVIH. 

Quasi-Civil  Proceedings. 

Page 

Chapter  CXLV.     Habeas  Corpus  Proceedings 1944 

CXLVI.      Proceedings  in  Cases  of  Insanity 1948 

CXLVII.      Disbarment  of  Attorneys 1955 

CXLVIII.      Proceedings  in  Juvenile  Courts 1959 


§508. 


CHAPTER- CXLV. 

Habeas  Corpus  Proceedings. 

Page 

Form  No.  1277.  Petition  for  writ.     (Common  form.) 1944 

Form  No.  1278.  Order  granting  writ.     (Common  form.) 1945 

Form  No.  1279.  Writ  of  habeas  corpus.     (Common  form.) 1945 

Form  No.  1280.  Return  to  writ  of  habeas  corpus  or  certiorari 

other  than  official.     (Common  form.) 1946 

Form  No.  1281.  Order  for  discharge  of  prisoner 1947 

Form  No.  1282.  Order  denying  writ  and  remanding  prisoner..  1947 

Annotations    1947 


FORM   No.  1277 — Petition  for  writ.     (Common  form.) 

[Title  of  court.] 

In  the  matter  of  the  application  of  D.  E. 

for  a  writ  of  habeas  corpus. 

To  the  Hon.  S.  T.,  Judge  of  the  Court  of  the  state  of  ,  in 

and  for  the  county  [or  district]  of  : 

The  petition  of  L.  M.  respectfully  shows :  That  D.  E.  is  unlawfully 
imprisoned,  detained,  confined,  and  restrained  of  his  liberty  by  , 

at  ,  in  the  county  of  ,  state  of  ;  that  the  said  im- 

prisonment, detention,  confinement,  and  restraint  are  illegal;  that 
the  illegality  thereof  consists  in  this :  [Here  specify  sufficient  of  the 
facts  to  show  the  illegality,  etc.,  of  the  imprisonment.] 

Wherefore,  your  petitioner  prays :   That  a  writ  of  habeas  corpus 
may  be  granted,  directed  to  the  said  ,  sheriff  [or  other  per- 

son] as  aforesaid,  commanding  him  to  have  the  body  of  said  D.  E. 
before  your  honor  at  a  time  and  place  therein  to  be  specified,  to  do 
and  receive  what  shall  then  and  there  be  considered  by  your  honor 

(1944) 


Ch.  CXLV.]  PETITION  FOR  WRIT,  ETC.— FORMS.  1945 

concerning  him,  together  with  the  time  and  cause  of  such  detention, 
and  said  writ;  and  that  he,  the  said  D.  E.,  may  be  restored  to  his 
liberty. 

[Date.]  [Signature.] 

[Verification.] 

FORM   No.  1278 — Order  granting  writ.     (Common  form.) 

[Title  of  court  and  cause.] 

On  reading  and  filing  the  petition  of  D.  E.,  duly  signed  and  veri- 
fied by  him  [or  by  any  other  person  under  authority  of  statute], 
whereby  it  appears  that  said  D.  E.  is  illegally  imprisoned  and  re- 
strained of  his  liberty  by  ,  at  ,  in  the  county  of  , 
state  of  ,  and  stating  wherein  the  illegality  consists,  from 
which  it  appears  that  a  writ  of  habeas  corpus  should  issue : 

It  is  therefore  ordered,  that  a  writ  of  habeas  corpus  issue  out 
of  and  under  the  seal  of  the  court  of  the  state  of  ,  in  and 

for  the  county  [or  district]  of  ,  directed  to  ,  sheriff  [or 

other  person  imprisoning],  commanding  him  to  have  the  body  of 
the  said  D.  E.  before  me,  in  the  courtroom  of  said  court,  on  the 
day  of  ,  19     ,  at  o'clock        M.  of  said  day,  to  do 

and  receive  what  shall  then  and  there  be  considered  concerning  the 
said  D.  E.,  together  with  the  time  and  cause  of  his  detention ;  and 
that  he  have  then  and  there  the  said  writ. 

[Date.]  S.  T.,  Judge. 

FORM   No.  1279 — Writ  of  habeas  corpus.     (Common  form.) 

[Title  of  court  and  cause.] 
State  of  ,  "| 

County  of  .  j 

The  people  of  the  state  of  ,  to  ,  greeting: 

We  command  you,  that  you  have  the  body  of  ,  by  you  im- 

prisoned and  detained,  as  it  is  said,  together  with  the  time  and  cause 
of  such  imprisonment  and  detention,  by  whatsoever  name  said 
shall  be  called,  or  charged,  before  the  Hon.  ,  judge  of  the 

said  court,  at  chambers  [or  at  the  courtroom,  as  may  be],  in  the 
courthouse  of  the  said  county,  in  the  city  of  ,  on  , 

the  day  of  ,  19     ,  at  o'clock  in  the  noon 

of  that  clay,  to  do  and  receive  what  shall  then  and  there  be  consid- 


ss. 


1946  HABEAS  CORPUS.  [Tit  XVIII. 

ered  concerning  the  said  ,  and  that  you  notify  .  And  have 

you  then  and  there  this  writ. 

Witness  the  Hon.  ,  judge  of  the  said  superior  court  of  said 

county,  this  day  of  ,  19     . 

Attest  my  hand  and  the  seal  of  said  court,  the  day  and  year  last 
above  written.  ,  Clerk. 

[Seal.]  By  ,  Deputy  Clerk. 

[Endorsements  on  the  foregoing  writ :] 

No. 
Superior  Court  of  the  County  of 
The  People  [etc.]  ex  rel.  ,  plaintiff,   ~) 

v. 

,  defendant.     J 
Writ  of  Habeas  Corpus. 

Filed  on  return,  this  day  of  ,  19     . 

,  Clerk. 
By  ,  Deputy  Clerk. 

FORM   No.  1280 — Return  to  writ  of  habeas  corpus  or  certiorari   other  than 
official.     (Common  form.) 

[Title  of  court  and  cause.] 

I  do  hereby  certify  and  return  to  the  Hon.  A.  B.,  a  justice  of  the 
court,  that  I  hold  the  said  C.  D.  under  and  by  virtue  of  a  war- 
rant issued  by  the  governor  of  the  state  of  for  the  arrest  of  the 
said  C.  D.,  under  the  name  of  J.  K.,  and  for  his  surrender  to  the 
authorities  of  the  state  of  ,  by  virtue  of  a  requisition  from  the 
governor  of  that  state,  a  copy  of  which  warrant  is  hereto  annexed, 
and  the  original  of  which  I  hold  in  my  possession  [or  state  other 
authority  for  the  detention]. 

All  of  which  I  certify,  and  have  here  the  body  of  the  said  C.  D., 
as  by  the  said  writ  I  am  commanded. 

Dated  ,  19     .  R.  S. 

State  of  ,  1   a 

>ss. 
County  of  .  J 

R.  S.,  being  duly  sworn,  says,  that  the  foregoing  return  is  true. 

[Or  otherwise  verify  as  the  statute  of  the  particular  state  requires.] 

R.  S. 

[Jurat.] 


Ch.  CXLV.]  ORDERS,   ETC.— FORMS.  1947 

FORM   No.  1281 — Order  for  discharge  of  prisoner. 

[Title  of  court  and  cause,  etc.] 

It  appearing  upon  the  return  of  the  writ  of  habeas  corpus  allowed 
by  me  that  A.  B.  is  imprisoned  [confined  or  restrained]  by  [name  of 
officer  or  person  by  whom  he  is  held],  and  no  lawful  cause  for  the 
said  imprisonment  [or  restraint]  of  said  A.  B.,  or  for  the  continuance 
thereof,  having  been  shown,  I  do  therefore  order  and  direct  the 
said  forthwith  to  discharge  the  said  A.  B.  from  his  custody. 

Given  under  my  hand,  at  ,  this  day  of  ,  19     . 

S.  T.,  Judge. 

FORM   No.  1282 — Order  denying  writ  and  remanding  prisoner. 

[Title  of  court  and  cause.] 

It  having  appeared  upon  the  return  of  the  writ  of  habeas  corpus 
allowed  by  me  that  A.  B.,  upon  whose  application  the  said  writ  was 
issued,  is  detained  in  custody  by  ,  by  virtue  of  a  mandate 

issued  by  a  court  [or  judge]  of  the  United  States,  in  a  case  where 
such  courts  [or  judges]  have  exclusive  jurisdiction  [or  state  other 
ground  for  denial  of  writ],  and  that  the  time  for  which  he  may 
legally  be  so  detained  has  not  expired : 

I  do  hereby  order,  that  the  said  A.  B.  be  and  he  is  hereby  remanded 
to  the  custody  of  the  said  under  said  mandate  [or  judgment, 

or  other  cause  or  warrant  for  detention]. 

[Date.]  S.  T.,  Judge. 


§508.     ANNOTATIONS. 

Order  directing  trial  court  to  give  petitioner  In  habeas  corpus  proceedings  time  In 
which  to  pursue  his  remedy  by  appeal  from  the  judgment. — [Title  of  court  and 
cause.]  Good  cause  appearing-  therefor,  it  is  hereby  ordered  by  this  court  that  the 
county  court  of  Rogers  County  give  Arthur  Flowers,  petitioner  herein,  upon  an 
application  for  writ  of  habeas  corpus,  thirty  days'  additional  time  to  the  time 
originally  given  him  by  said  court  to  prepare  and  serve  his  case-made  in  this  case. 
TDate.]  ,    Judge   of   Criminal   Court  of   Appeals:     Ex   parte   Flowers,    2    Okla. 

Cr.   430,   101   Pac.   860. 

Commitment  without  reasonable  or  probable  cause. — Where  the  petition  is  upon 
the  ground  that  the  prisoner  has  been  committed  and  detained  without  reasonable 
or  probable  cause,  it  must  set  forth  suficient  of  the  evidence  taken  at  the  pre- 
liminary examination  to  show  such  w.nt  of  probable  cause:  Ex  parte  Lapique,  139 
Cal.  xix,  72  Pac.  995;  State  v.  f 3cond  Judicial  District,  26  Mont.  275,  67  Pac.  943. 
And  such  evidence  must  be  se'  f»rth  in  such  form  that  perjury  may  be  assigned  on 
false  accusations:  Ex  parte  Walpole,  84  Cal.  584,  24  Pac.  308;  Ex  parte  Pjckley,  105 
•Cal.  123,  38  Pac.  686. 


1948  PROCEEDINGS  IN  INSANITY.  [Tit.  XVIII. 

Writ,  when  denied. — A  writ  of  habeas  corpus  will  be  denied  where  it  appears  that 
the  judgment  upon  which  the  petitioner  is  imprisoned  is  one  from  which  an  appeal 
may  be  taken,  thereby  affording  an  adequate  remedy  at  law:  Ex  parte  Flowers,  2 
Okla.  Cr.  430,  101  Pac.  860,  863. 

When  writ  will  be  granted. — A  writ  of  habeas  corpus  will  be  granted,  and  the 
petitioner  will  be  discharged  in  the  proceedings  thereon,  where  it  appears  that  he 
is  held  in  custody  in  proceedings  before  a  justice  of  the  peace  where  the  record 
shows  judgment,  sentence,  and  commitment,  but  fails  to  show  that  plea  was 
entered.  Nor  can  the  record  be  supplied  by  parol  testimony  or  overthrown  by  such 
testimony:    Ex  parte  Walton,  2  Okla.  Cr.  437,  101  Pac.  1034,  1036. 

The  plea  of  once  In  jeopardy  will  not  be  reviewed  or  inquired  into  on  habeas 
corpus.  If  pleaded  and  disregarded,  it  is  an  error  to  be  corrected  by  appeal:  Ex 
parte  King,  10  Cal.  App.  282,  101  Pac.  810,  811,  citing  Church  on  Habeas  Corpus, 
§  253. 

Extradition. — As  to  extradition  upon  a  complaint  charging  the  commission  of  an 
offense  according  to  the  form  and  procedure  prescribed  in  the  state  in  which  the- 
crime  was  alleged  to  have  been  committed,  see  Morrison  v.  Dwyer  (Iowa),  121  N. 
W.  1064. 

Order  discharging  an  attachment  for  contempt  against  a  trustee  brought  within 
the  jurisdiction  of  the  court  by  extradition  proceedings  based  on  a  complaint  and 
warrant  on  a  charge  of  embezzlement  of  property  under  his  control  as  trustee, 
affirmed  in  State  ex  rel.  v.  Boynton,  140  Wis.  89,  121  N.  W.  887. 


CHAPTER   CXLVI. 

Proceedings  in  Cases  of  Insanity. 

Page 
§  509.  Charges  of  insanity  and  proceedings  thereon.     (Cal.  Pol.  Code, 

§§2168-2171.)    1948 

Form  No.  1283.  Affidavit  of  insanity 1949 

Form  No.  1284.  Warrant  of  arrest.     (Insane  person) 1949 

Form  No.  1285.  Certificate  of  arresting  officer 1950 

Form  No.  1286.  Certificate  of  medical  examiners 1950 

Form  No.  1287.  Judgment  of  insanity  and  order  of  commit- 
ment of  insane  person 1952 

Form  No.  1288.  Statement  of  financial  ability 1954 

Form  No.  1289.  Clerk's  certificate  to  affidavit,  etc.,  judgment 
of  insanity,  order  of  commitment,  etc. 
(Annexed  to  judgment.) 1954 


§509.     CHARGES  OF    INSANITY,   AND   PROCEEDINGS   THEREON.      (Cal. 
Pol.  Code,  §§  2168-2171.) 

"Whenever  it  appears  by  affidavit  to  the  satisfaction  of  a  magistrate 
of  a  county,  or  city  and  county,  that  any  person  therein  is  so  far  dis- 
ordered in  his  mind  as  to  endanger  health,  person,  or  property,  he 
must  issue  and  deliver  to  some  peace  officer,  for  service,  a  warrant 


Vss. 


Ch.  CXLVI.]  CHARGES,  ETC.— FORMS.  1949 

directing  that  such  person  be  arrested  and  taken  before  a  judge  of 
the  superior  court  of  the  county,  for  a  hearing  and  examination  on 
such  charge.  Such  officer  must  thereupon  arrest  and  detain  such 
person  until  a  hearing  and  examination  can  be  had,  as  hereinafter 
provided.  At  the  time  of  the  arrest  a  copy  of  said  affidavit  and 
warrant  of  arrest  must  be  personally  delivered  to  said  person.  Such 
affidavit  and  warrant  shall  be  in  substantially  the  following  form; 

FORM   No.  1283— Affidavit  of  insanity. 

In  the  court,  of  county  of  ,  state  of  California. 

In  the  matter  of  ,  an  alleged  insane  person. 

State  of  California, 
County  of 

,  being  duly  sworn,  deposes  and  says  that  there  is  now  in 
said  county,  in  the  city  or  town  of  ,  a  person  named  ,  who 

is  insane,  and  is  so  far  disordered  in  mind  as  to  endanger  the  health, 
person  or  the  property  of  himself,  or  of  others,   and  that  he,  at 
,  in  said  county,  on  the  day  of  ,  19     ,  threatened 

and  attempted  [state  actions,  etc.]. 

That  by  reason  of  said  insanity,  said  person  is  dangerous  to  be  at 
large. 

Wherefore,  affiant  prays  that  such  action  may  be  had  as  the  law 
requires  in  the  cases  of  persons  who  are  so  far  disordered  in  mind 
as  to  endanger  health,  person,  and  property. 

[Signature  of  affiant.] 

[Jurat.] 

FORM   No.  1284— Warrant  of  arrest.     (Insane  person.) 

In  the  court  of  county  of  ,  state  of  California. 

In  the  matter  of  ,  an  alleged  insane  person. 

The  people  of  the  state  of  California,  to  any  sheriff,  constable, 
marshal,  policeman,  or  peace  officer  in  this  state : 

The  affidavit  of  ,  having  been  presented  this  day  to  me.  at 

county  of  ,  state  of  California,  from  which  it  appears 

that  there  is  now  in  this  county,  at  ,  a  person  by  the  name 

of  ,  who  is  insane,  and  who  is  so  disordered  in  mind  as  to 

endanger  his  own  health,  person,  and  property  [or  the  persons, 
lives,  and  property  of  others],  and  that  it  is  dangerous  for  said  per- 
son to  be  at  large ; 


195U  PROCEEDINGS  IN  INSANITY.  [Tit.  XVIII. 

And  it  satisfactorily  appearing  to  me  that  said  is  insane,  and 

so  far  disordered  in  his  mind  as  to  endanger  health,  person,  and 
property : 

Now,  therefore,  you  are  commanded  forthwith  to  arrest  the  above- 
named  person,  and  take  him  before  a  judge  of  the  superior  court  of 
the  said  county  of  ,  for  a  hearing  and  examination  on  the 

said  charge  of  insanity. 

And  I  hereby  direct  that  a  copy  of  this  warrant,  together  with  a 
copy  of  said  affidavit,  be  delivered  to  said  ,  at  the  time  of  his 

arrest ;  and  I  further  direct  that  this  warrant  may  be  served  at  any 
hour  of  the  night. 

Witness  my  hand,  this  day  of  ,  19     . 

[Signature  of  magistrate.] 


FORM   No.  1285 — Certificate  of  arresting  officer. 

Office  of  ,  county  of  ,  state  of  California : 

I  hereby  certify  that  I  received  the  above  warrant  of  arrest  on  the 
day  of  ,  19     ,  and  served  the  said  warrant  by  arresting 

the  said  ,  alleged  to  be  insane,  and  bringing  him  before 

judge  of  the  superior  court  of  said  county  of  ,  on  the 

day  of  ,  19      ;  and  I  further  certify  that  I  delivered  a  copy  of 

said  warrant  of  arrest,  together  with  a  copy  of  the  affidavit  of 
insanity,  as  directed  in  said  warrant,  personally  to  said  ,  at  the 

time  of  the  arrest. 

[Signature.] 


FORM    No.   1286 — Certificate  of  medical   examiners. 

In  the  superior  court  of  the  county  of  ,  state  of  California. 

In  the  matter  of  ,  an  alleged  insane  person. 

and  ,  medical  examiners  in  the  county  of  ,  duly 

appointed  and  certified  as  such,  do  hereby  certify,  under  our 
hands,  that  we  have  attended  before  a  judge  of  said  court  at  the 
examination  of  the  said  ,  and  have  heard  the  testimony  of  all 

witnesses  sworn  and  examined  upon  said  hearing,  and  have  made  a 
personal  examination  of  the  said  ,  and  have  testified  under  oath 

before  said  court  to  the  following  facts,  which  were  the  result  of  said 
examination : 


Ch.  CXLVI.]         CERTIFICATE  OF  EXAMINERS.— FORMS.  1951 

[Statements  of  facts.] 

1.  Name,  ,  alleged  insane  person,  resides  at  ,  county  of  ,  age, 
years;   nativity,             ;    if  foreign   born,   from   what  port  or  place   did       he   come   to 
the  United  States,  and  when  and  where  did       he  land             ;  how  long  in  California, 

;    place    from    which       he    came    to   this   state,  ;    sex,  ;    color,  ; 

occupation,  ;   religious   belief,  ;   education — illiterate,    reads   only,    common 

school,  academic,  collegiate,  or  unknown.  [Strike  out  words  not  required.]  Civil 
condition — single,  married,  widowed,  divorced.  [Strike  out  words  not  required.]  If 
female  and  married,  give  maiden  name,  ;  give  maiden  name  of  mother,  ; 

number  of  children  of  mother:   living,  ;   dead, 

2.  Has  either  parent  been  addicted  to  the  use  of  opium,  cocaine,  tobacco,  or 
alcoholic  beverages  to  excess,  or  other  stimulating  narcotics? 

3.  Have  any  relatives  been  eccentric  or  peculiar  in  any  way  in  their  habits  or 
pursuits?  .  If  so,  how?  .  Have  any  relatives,  direct  or  collateral,  suf- 
fered, or  are  they  suffering,  from  any  form  of  chronic  disease,  such  as  consumption 
or  tuberculosis,  syphilis,  rheumatism,  neuralgia,  hysteria,  or  nervousness,  or  had 
epilepsy  or  falling  sickness? 

4.  Which  parent  does  alleged  insane  person  resemble  mentally,  ;  physically, 

;   habits   [cleanly  or  uncleanly] 

(a)  Has  alleged  insane  person  ever  been  addicted  to  masturbation  or  sexual  ex- 
cesses? .     If  so,  for  how  long? 

(b)  Has  alleged  insane  person  ever  had  convulsions?  .  If  so,  when  did  he 
have  the  first  one?            .     When  the  last  one? 

(c)  State  alleged  insane  person's  habits  as  to  use  of  liquor,  tobacco,  opium,  or 
other  drugs,  and  whether  excessive  or  moderate. 

(d)  What  is  alleged  insane  person's  natural  disposition  or  temperament,  and 
mental  capacity? 

5.  Has  alleged  insane  person  insane  relatives?  .  If  so,  state  the  degree  of 
consanguinity,  and  whether  paternal  or  maternal. 

6.  What  is  alleged  insane  person's  general  physical  condition? 

7.  Specify  any  disease  of  which  alleged  insane  person  has  suffered,  or  does  suffer, 
or  any  injury  received. 

8.  Has  alleged  insane  person  ever  been  an  inmate  of  an  institution  for  the  insane? 

If   so,    state   when,    where,    and    how   long.  .      Whether   discharged    or 

otherwise. 

(a)   Number  of  previous  attacks  .      (b)    Date  of  previous   attacks  .      (c) 

Length  of  time  each  previous  attack  lasted 

9.  Present  attack  began,  .  Was  the  present  attack  gradual  or  rapid  in  its 
onset? 

10.  Is  alleged  insane  person  noisy,  restless,  violent,  dangerous,  destructive,  incen- 
diary, excited,  or  depressed? 

(a)  Homicidal  or  suicidal?  [If  either  homicide  or  suicide  has  been  attempted  or 
threatened,  it  should  be  so  stated.] 

11.  Age  when  menses  appeared, 

(a)  Amount  and  character  before  insanity  appeared,  * 

(b)  Since  insanity  appeared, 

12.  Has   the  change  of  life   taken  place?  . 

(a)  Was  it  gradual  or  sudden? 

(b)  How  changed  from  normal?  . 

13.  Memory, 

(a)  Sleep, 

(b)  Headache   or   neuralgia,  . 

(c)  Constipation   or  indigestion,  . 

(d)  Hallucinations, 

(e)  Delusions,   [specify,  if  possible,  and  whether  fixed  or  changeable]. 

14.  What  is  the  supposed  cause  of  insanity? — Predisposing,  .     Exciting, 
Other  facts  indicating  insanity.     [State  what  the  alleged  insane  person  said  and 

did  in  the  presence  of  the  examiners,  and  how  changed  in  business  or  social  habits, 
and  disposition,  as  communicated  to  examiners  by  others.] 


1952  PROCEEDINGS  IN  INSANITY.  [Tit.  XVIII. 

What  treatment  has  been  pursued  [state  remedies  given,  and  whether  hypoder- 
mically  or  not]  V 
Whether  patient  has  been  restrained  by  muff,  belt,  or  otherwise,  * 

Diagnosis: 

Name  and  address  of  correspondent, 
Telegraphic  address, 
Relationship  of  correspondent  to  alleged  insane  person, 

And  we  do  further  certify  that  we  believe  the  said  is  so  far 

disordered  in  his  mind  as  to  endanger  [state  whether  the  dan- 

ger is  to  health,  person,  and  property,  or  either,  or  any,  as  the  case 
may  be]. 

Dated  this  day  of  ,  19     . 

[Signatures], 

Medical  examiners  in  the  county  of  ,  state  of  California. 


FORM   No.  1287 — Judgment  of  insanity  and  order  of  commitment  of  insane 
person. 

In  the  superior  court  of  the  county  of  ,  state  of  California. 

In  the  matter  of  ,  an  alleged  insane  person. 

On  this  day  of  ,  19     ,  ,  a  person  alleged  to  be 

insane,  was  brought  before  me  in  open  court,  for  a  hearing  and 
examination   on   a   charge   of   insanity,   on   the   affidavit   of 
charging  him  with  insanity,   made  before,   and   on   a  warrant  of 
arrest  issued  thereon  by  ,  a  magistrate  of  said  county 

of  ,  and  upon  the  order  of  this  court,  fixing  the  time  and  place 

for  the  hearing  and  examination  of  said  charge,  made  in  open  court, 
and  it  appearing  to  the  court  that  said  alleged  insane  person,  when 
said  order  was  made,  was  then  and  there  personally  present  in  open 
court,  and  was  then  and  there  informed  by  the  court  that  he  was 
charged  with  being  insane,  and  of  his  rights  to  make  a  defense  to 
such  charge,  and  of  his  right  to  be  represented  by  counsel,  and  to 
produce  witnesses  on  his  behalf,  and  to  have  subpoenas  issued  to 
compel  the  attendance  of  witnesses,  and  was  further  informed  that,  if 
at  such  hearing  and  examination,  he  should  be  ordered  committed, 
that  he  might,  within  five  days  after  the  making  of  such  order  of 
commitment,  demand  that  the  question  of  his  insanity  be  tried  by  a 
jury  before  said  superior  court. 

And  it  further  appearing  to  the  court,  that  the  original  order  fix- 
ing the  time  and  place  for  said  hearing  and  examination  was  entered 


Ch.  CXLVI.]  COMMITMENT,    ETC.— FORMS.  1953 

in  the  minutes  of  the  court  by  the  clerk  thereof,  and  a  duly  certified 
copy  of  said  order  was  duly  served  on  said  alleged  insane  person,  and 
upon  ,  relatives  of  said  alleged  insane  person,  residing  in 

said  county  of  ,  as  were  deemed  by  the  court  necessary  or 

proper  persons  to  be  served  with  notice  of  the  arrest  of  said  alleged 
insane  person,  and  of  hearing  on  said  charge  of  insanity; 

At  said  hearing  and  examination,  said  alleged  insane  person  \v;is 
represented  by  ,  an  attorney  of  this  court  [appointed  by  the 

court  for  that  purpose]  ; 

The  court  thereupon,  in  open  court,  proceeded  with  the  hearing 
and  examination  of  said  alleged  insane  person,  and  [here  naming 
witnesses]  were  sworn  and  examined  as  witnesses  in  regard  to  the 
mental  condition  of  said  alleged  insane  person,  his  financial  condi- 
tion, and  that  of  the  persons  liable  for  his  care,  support,  and  main- 
tenance. 

At  said  hearing  and  examination,  there  were  in  attendance, 
and  ,  two  regularly  appointed  and  qualified  medical  examiners 

of  said  county,  who  then  and  there  heard  the  testimony  of  all 
the  witnesses,  and  each  of  whom  made  a  personal  examination  of  said 
alleged  insane  person,  and  testified  before  the  court  as  to  the  results 
of  such  examinations,  and  other  pertinent  facts  within  their  knowl- 
edge. 

Said  medical  examiners,  after  making  the  examination  and  hear- 
ing the  testimony  of  the  witnesses,  and  testifying  as  aforesaid,  did 
make  a  certificate  showing  all  the  facts  required  by  section  2170  of 
the  Political  Code,  which  certificate  is  hereto  attached  and  made  a 
part  hereof. 

Now,  therefore,  after  such  examination  and  certificate  made  as 
aforesaid,  the  court  being  satisfied  from  the  testimony  of  said  wit- 
nesses, and  the  truth  of  the  matters  set  forth  in  said  certificate,  that 
said  is  insane,  and  is  so  far  disordered  in  mind  as  to  endanger 

health,  person,  and  property,  and  that  it  is  dangerous  for  life,  health, 
person,  and  property  for  such  person  to  be  at  large,  and  that  his 
condition  is  such  as  to  require  care  and  treatment  in  a  hospital  for 
the  care  and  treatment  of  the  insane ; 

It  is  therefore  ordered,  adjudged,  and  decreed,  that  said  is 

insane,  that  he  be  committed  to  and  confined  in  the  state  hos- 

pital, at  ,  California. 


1954  PROCEEDINGS  IN  INSANITY.  [Tit.  XVIII. 

It  is  further  ordered  and  directed  that  ,  sheriff  of  the 

county  of  ,  take,  convey,  and  deliver  said  to  the  proper 

authorities  of  said  hospital,  to  be  held  and  confined  therein  as  an 
insane  person. 

The  sum  of  $  having  been  found  on  the  person  of  said  per- 

son at  the  time  of  his  arrest,  the  said  sheriff  is  ordered  to  take  pos- 
session of  the  same  and  deliver  it  to  the  medical  superintendent  of 
said  institution  with  said  insane  person. 

Done  in  open  court,  this  day  of  ,  19     . 

[Signature], 
Judge  of  the  Superior  Court  [etc.]. 

FORM   No.  1288 — Statement  of  financial  ability. 

As  to  the  ability  of  said  to  pay  for  his  care  and  support  at 

the  hospital,  I  find  on  diligent  inquiry  that  said  is  possessed  of 

real  estate  of  the  estimated  value  of  $  ,  situated  in  ,  and 

of  the  following  description :  [Here  describe]  ;  also  the  following 
described  personal  property :  [Here  describe]  ;  that  said  is  able 

to  pay  the  sum  of  $  per  month  for  his  care  and  support  at 

the 

Name  and  address  of  guardian:  ;  residing  at 

Or— 

That    said  has    relatives    as   follows:     [Here    naming    each 

known  relative  with  his  or  her  place  of  residence.]     That  said  rela- 
tives are  financially  able  to  pay  for  the  care  and  support  of  said 
,  at  the  hospital,  the  sum  of  $  per  month. 

Dated  ,19     . 

[Signature], 
Judge  of  the  Superior  Court  [etc.]. 

FORM   No.  1289 — Clerk's   certificate  to  affidavit,   etc.,   judgment   of   insanity, 
order  of  commitment,  etc.     (Annexed  to  judgment.) 

State  of  California,) 

■  SS. 

County  of  .} 

I,  ,  county  clerk  and  ex-officio  clerk  of  the  superior  court  of 

the  county  of  ,  do  hereby  certify  the  foregoing  to  be  a  full, 

true,  and  correct  copy  of  the  original  affidavit  of  insanity  and  order 
of  arrest,  order  fixing  time  for  hearing  and  examination,  statement 
of  financial  ability,  certificate  of  medical  examiners,  judgment  of 


Ch.  CXLVIL]  PETITION,   ETC.— FORMS.  1955 

insanity,  and  order  of  commitment  on  file  in  my  office,  and  that  I 
have  carefully  compared  the  same  with  the  originals. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
seal  of  said  superior  court,  this  day  of  ,  19     . 

[Seal.]  [Signature], 

County  Clerk  and  ex-officio  clerk  of  the  Superior  Court  [etc.]. 

By  ,  Deputy  Clerk. 


CHAPTER   CXLVII. 

Disbarment  of  Attorneys. 

Page 

Form  No.  1290.  Petition  for  disbarment 1955 

Form  No.  1291.  Verification  of  petition  for  disbarment.     (Cali- 
fornia.)        1956 

Form  No.  1292.  Order  addressed  to  accused  to  appear  and  an- 
swer       1956 

Form  No.  1293.  Demurrer  or  objections  to  accusation 1957 

Form  No.  1294.  Judgment  of  disbarment  where  the  accusation 

is  based  upon  a  conviction  of  a  felony 1957 

Form  No.  1295.  Judgment  or  order  of  suspension i958 


FORM   No.  1290 — Petition  for  disbarment. 

[Title  of  court.] 
In  the  matter  of  A.  B., 

an  attorney  at  law. 

To  the  Honorable  Court  of  the  county  of  ,  state  of 

Come  now  C.  D.  and  E.  F.,  of  the  city  of  ,  county  of  , 

state  of  ,  attorneys-at-law  and  members   of  the  bar  of  said 

county  and  state,  and  make  and  present  this  their  accusation  to  the 
said  court,  in  and  for  said  county  and  state,  as  follows : 

1.  That  A.  B.  is,  and  at  all  times  herein  mentioned  continuously 
has  been,  an  attorney-at-law,  duly  licensed  and  admitted  to  practise 
in  all  the  courts  of  the  county  of  ,  state  of  ;  and  that  said 

A.  B.  is  now,  and  during  all  of  said  times  has  been,  a  practitioner  in 
said  courts. 

That  the  said  A.  B.  is  hereby  accused  of  unprofessional  conduct 
warranting  his  disbarment,  upon  the  following  facts,  which  facts 
are  hereby  made  the  basis  of  this  charge  and  accusation,  to  wit : 
[Here  set  forth  the  facts  showing  (1)  his  conviction  of  a  felony  or 


1956  DISBARMENT  OF  ATTORNEYS.  [Tit.  XVIII. 

misdemeanor  involving  moral  turpitude;  or  (2)  wilful  disobedience 
or  a  violation  of  an  order  of  the  court  requiring  him  to  do  or  forbear 
an  act  connected  with,  or  in  the  course  of,  his  profession  which  he 
ought  in  good  faith  to  do  or  forbear,  and  any  violations  of  the  oath 
taken  by  him,  or  of  his  duties  as  such  attorney  and  counselor;  or  (3) 
corruptly  or  wilfully  and  without  authority  appearing  as  attorney 
for  a  party  to  an  action  and  proceedings ;  or  (4)  lending  his  name  to 
be  used  as  attorney  and  counselor  by  another  person  who  is  not  an 
attorney  and  counselor,  or  any  other  acts  made  cause  for  disbarment 
by  statute.  Set  out  the  facts  fully  upon  each  ground  and  all 
grounds  of  accusation.] 

Wherefore,  your  informants  pray,  that  the  court  make  an  order 
requiring  the  said  A.  B.  to  answer  these  accusations,  and  if  upon 
an  investigation  thereof  he  be  found  guilty  of  the  matters  herein 
charged,  that  he  be  dealt  with  as  the  law  directs. 

M.  N.  [District  Attorney  of  County],  or 

C.  D.  and  E.  F.,  for  petitioners  and  informants, 
in  pro.  per. 

[Verification  as  in  form  No.  1291,  or  as  otherwise  provided  by 
statute.] 

FORM   No.  1291— Verification  of  petition  for  disbarment.     (California.) 

State  of  California,) 

-  ss 
County  of  .} 

E.  F.,  being  duly  sworn,  says:  That  he  is  one  of  the  informants 
named  in  the  foregoing  accusation;  that  he  has  read  the  same  and 
knows  the  contents  thereof,  and  that  the  charges  contained  therein 
are  true. 

[Jurat  of  notary.]  E-  F- 

Verification  of  petition  for  disbarment.— Verification  upon  information  of  the 
informants  in  a  proceeding  for  disbarment  is  insufficient:  In  re  Hotchkiss,  58  Cal. 
39,  40,  citing  Cal.  C,  C.  P.  §§  290,  291;  In  re  Hudson,  102  Cal.  467,  468,  36  Pac.  812. 

Where  the  verification  is  in  the  exact  language  of  the  statute  it  is  sufficient:  In  re 
Collins,  147  Cal.  8,  10,  81  Pac.  220. 

FORM   No.  1292 — Order  addressed  to  accused  to  appear  and  answer. 
[Title  of  court  and  cause.] 

To  : 

Whereas,  on  the  day  of  ,  19     ,  an  accusation,  in  writ- 

ing   duly  verified  by  ,  was  received  and  filed  in  this  court, 


Ch.  CXLVIL]  ORDERS,    JUDGMENT,    ETC.— FORMS.  1957 

charging  that  you  have  been  guilty  of  [here  state  the  offense]  as  a 
counselor  and  attorney-at-law,  [if  the  accusation  is  accompanied  also 
with  affidavits,  so  state,  designating  the  same  by  the  names  of 
affiants,]  a  copy  [or  copies]  of  which  accusation  [and  affidavits]  is 
[or  are]  hereto  annexed  and  herewith  served  upon  you;  and  the 
court  being  advised  in  the  premises : 

You  are  hereby  ordered  and  required  to  appear  and  answer  said 
accusation  at  the  courtroom  of  this  court  on  the  day  of  , 

19  ,  at  the  hour  of  o'clock  of  said  day.  [The  time  under  the 
California  statute,  §  292  C.  C.  P.,  must  be  at  least  five  days  after 
date  of  service  of  this  order.] 

[Date  }  S.  T.,  Superior  Judge. 

[Annex  copy  of  accusation  (and  affidavits,  if  any).] 

FORM    No.  1293 — Demurrer  or  objections  to  accusation. 

[Title  of  court  and  cause.] 

Now  comes  ,  the  defendant  named  in  the  accusation  filed 

herein,  and  appears  and  answers  to  the  said  accusation  as  follows : 

Defendant  demurs  to  said  accusation  upon  the  ground  that  the 
same  does  not  state  facts  sufficient  to  constitute  a  cause  for  accusa- 
tion or  for  the  disbarment  or  suspension  of  defendant  as  an  attorney 
or  counselor. 

And  defendant  further  objects  to  said  accusation  upon  the  follow- 
ing grounds:  [Here  set  forth  any  other  objections  as  to  the  legal 
sufficiency  of  the  accusation.] 

Wherefore,  defendant  prays  that  said  accusation  be  dismissed,  and 
that  he  be  given  such  other  relief  as  may  be  proper. 

M.  N.,  defendant. 
A.  B.,  Attorney  for  defendant. 

For  the  substance  of  an  accusation  for  disbarment  deemed  sufficient  as  against 
■demurrer,  see  the  third  count  of  the  accusation  in  In  re  Collins,  147  Cal.  8,  18,  81 
Pac.   220. 

FORM   No.  1294 — Judgment    of    disbarment   where   the   accusation    is    based 
upon  a  conviction  of  a  felony. 

[Title  of  court  and  cause.] 

C.  D.  and  E.  F.,  having  preferred  charges,  and  having  presented  to 
this  court  and  filed  therein  their  accusation,  in  writing,  duly  veri- 
fied as  required  by  law,  against  the  above-named  ,  defendant ; 
and  proof  having  been  made  to  the  satisfaction  of  the  court  that  a 

Jury's  PL— 124. 


1958  DISBARMENT  OF  ATTORNEYS.  [Tit.  XVIII. 

copy  of  said  accusation  [etc.],  together  with  an  order  to  appear  and 
answer,  was  duly  served  upon  said  ,  defendant;  and  whereas, 

the  said  ,  defendant,  interposed  an  answer  thereto  and  hear- 

ing upon  said  accusation,  and  the  answer  thereto  was  in  due  course 
regularly  had ;  and  the  court  having  heard  the  proofs,  wheref rora  it 
appears  that  the  said  charge  in  the  said  accusation  is  true,  and  that 
on  the  day  of  ,  19     ,  the  said  defendant  was  by  a  judg- 

ment duly  given,  made  and  rendered  in  the  court  of  , 

state  of  ,  convicted  of  [here  state  the  felony  charged]  : 

Now,  upon  all  the  papers,  testimony,  and  proceedings  herein : 
It  is  hereby  ordered  and  adjudged,  that  the  name  of  said  , 

defendant,  be  and  the  same  is  hereby  authorized  to  be  stricken  from 
the  roll  of  attorneys  and  counselors  of  this  court,  and  that  defendant 
be  and  he  is  hereby  precluded  from  henceforth  practising  as  an 
attorney  or  counselor  at  law  in  any  of  the  courts  of  this  state. 
[Date.] 

S.  T.,  Superior  Judge. 

FORM   No.  1295 — Judgment  or  order  of  suspension. 

[Title  of  court  and  cause.] 

[After  recitals  as  to  filing  of  the  accusation,  and  service  thereof^ 
together  with  the  order  to  appear  and  answer,  of  the  hearing  there- 
on, and  of  the  proofs  and  findings  of  any  charge  (specifying  it) 
under  the  statute  warranting  the  court  in  pronouncing  judgment  of 
suspension:] 

It  is  ordered  and  adjudged,  that  the  defendant  herein  be  and  he 

is  hereby  deprived  of  the  right  to  practise  as  an  attorney  or  counselor 

in  the  courts  of  this  state  for  the  period  of  [here  designating  the 

period  for  which  the  suspension  is  to  continue]. 

[Date.] 

S.  T.,  Superior  Judge. 


Ch.  CXLVI1I.] 


JUVENILE  COURTS. 


1959 


CHAPTER  CXLVIII. 


Proceedings   in   Juvenile  Courts- 


Form  No.  1296. 

Form  No.  1297. 
Form  No.  1298. 
Form  No.  1299. 

Form  No.  1300. 
Form  No.  1301. 

Form  No.  1302. 

Form  No.  1303. 

Form  No.  1304. 

Form  No.  1305. 

Form  No.  1306. 

Form  No.  1307. 
Form  No.  1308. 

Form  No.  1309. 


Form  No.  1310. 

Form  No.  1311. 
Form  No.  1312. 


Page 
Petition  for  arrest  and  examination  of  a  delin- 
quent minor.     (California.) 1961 

Citation  to  parent  or  custodian.     (California.)  1961 

Certificate  of  service  of  citation.     (California.)  1962 
Notice    to    parents,    custodian,    or    guardian. 

(Utah.)    1962 

Subpoena.     (California.)    1963 

Sheriff's   certificate    of    service    of    subpoena. 

(California.)    "...  1963 

Commitment  of  dependent  child.     (California.)  1963 

Commitment  of  delinquent  child.    (California.)  1964 

Bench  warrant.     (California.) 1965 

Order  directing  time  of  service  of  bench  war- 
rant.    (California.)   1965 

Return  endorsed  upon  bench  warrant.     (Cali- 
fornia.)      1965 

Order  admitting  to  bail.     (California.) 1966 

Order  of  commitment  to   school  of  industry. 

(From  court  of  record,  California.) 1966 

Order  of  commitment  to  boys'  school  of  indus- 
try.     (From    court   of   limited    jurisdiction, 

California.)    1967 

Affidavit   on   application   for   a   permit   for   a 

minor  child  to  work.     (California.) 1968 

Recommendation  that  permit  issue 1969 

Order  granting  permit 1969 


[Note:  The  manifest  injustice  which  so  long  prevailed  in  dealing  with  the  delin- 
quencies and  offenses  of  children  has  prompted  the  author  to  include  a  chapter 
devoted  to  this  subject  in  this,  a  work  relating  to  civil  matters.  To  classify  the 
delinquent  acts  of  juvenile-  offenders  as  crimes,  or  even  as  quasi-crimes,  in  the 
sense  in  which  these  terms  are  ordinarily  understood,  is  not  only  to  unjustly,  but, 
we  submit,  to  falsely,  stigmatize  such  acts  and  the  children  who  may  be  the  unfor- 
tunate, misguided,  or  indiscreet  offenders.  The  reason  for  this  statement  is  that 
offenses  committed  by  children  are  never,  beyond  a  reasonable  doubt,  characterized 
by  the  one  absolutely  essential  characteristic  of  every  crime — a  criminal  intent,  i.  e.„ 
an  intent  which  is  based  upon  understanding  and  purpose.  The  statement  might 
be  ventured  that  the  very  commission  of  the  offense  by  a  person  of  immature 
years  itself  points  the  deficiency  and  weakness.  It  may  be  questioned  whether 
retributive,  as  opposed  to  reformative  or  corrective,  measures  are  ever  justified  in 
dealing  with  even  adult  offenders;  but  as  to  delinquent  children,  who  are  naturally 
of  immature  understanding,  generally  vacillating  in  will,  and  almost  invariably 
unfortunate  in  their  environments,  there  can  be  no  reasonable  or  humane  dissent 
from  the  principle  that  the  measures  brought  to  bear  upon  them  and  their  delin- 
quent acts  should  in  every  case  be  corrective  only,  and  as  far  removed  as  possible 
from  the  terminology,  methods,  and  practices  incident  to  jurisdiction  over  crimes.] 


1960  JUVENILE  COURTS.  [Tit.  XVIII. 

[References  to  statutes.] 

California:  In  this  state  there  are  no  distinctively  juvenile  courts.  The  superior 
courts  are  vested  with  jurisdiction  in  all  matters  relating  to  delinquent  and  depend- 
ent juveniles.  For  the  statutes  relating  to  this  subject,  see  Henning's  Gen.  Laws, 
p.  115;  Kerr's  Bienn.  Supp.  1906-1909,  pp.  1471-14S4;  Employment  of  Minors,  Hen- 
ning's Gen.  Laws,  p.  122;  Kerr's  Bienn.  Supp.  1906-1909,  pp.  1495-1498. 

Arizona:     See  Laws  1907,  p.  142  et  seq. 

Colorado:  Juvenile  courts,  see  Rev.  Stats.,  §§  1589  to  1607;  Sess.  Laws  1907,  ch. 
149,  p.  324;  Laws  1909,  ch.  156,  p.  334  et  seq. 

Hawaii:  Laws  1905,  Act.  28,  p.  31;  Laws  1907,  pp.  32,  36;  Laws  1909,  Act.  22,  p. 
22  et  seq. 

Idaho:  Juvenile  delinquents,  Rev.  Pol.  Code,  §§  823-832;  Prob.  and  Jus.  Cts., 
§§  8328-8337;  Sess.  Laws  1909,  pp.  7,  224,  272.  (Form  of  commitment,  Pol.  Code, 
§  824.) 

Iowa:  Juvenile  courts,  detention  homes,  etc.,  Supp.  1907,  ch.  5-b,  §  254-a  18  to 
254-a  30;  Laws  1909,  ch.  13,  p.  14. 

Kansas:  Juvenile  courts,  Gen.  Stats.  1905  (Dassler),  §§4412-4426;  Laws  1909,  p. 
277  et  seq. 

Minnesota:  Juvenile  offenders,  Rev.  Laws  1905,  §§  5496-5503;  Laws  1907,  pp.  106, 
193,  550;  Laws  1909,  pp.  354,  507. 

Missouri:  Delinquent  and  neglected  children,  3  Mo.  Ann.  Stats.  1906,  §§  5251-3  to 
5251-56,  pp.  2732-2748. 

Montana:  Delinquent  children  and  juvenile  offenders,  Rev.  Codes  1907,  §§  9423- 
9439;  Laws  1907,  pp.  224-232. 

Nebraska:     Juvenile  courts,  etc.,  Ann.  Stats.  1909  (Cobbey),  §§  5451-5490. 

Nevada:  Delinquent  children,  Stats.  1908-1909,  pp.  229-241;  contributory  depend- 
ency and  contributory  delinquency,  pp.  203-206. 

North  Dakota:  Reform  school,  Stats.  1907,  pp.  288,  377;  dependent  children,  Stats. 
1907,  p.  121;  regulating  child  labor,  Stats.  1909,  p.  181.  North  Dakota  Rev.  Codes 
1905,  §  9511,  provides:  "Whenever  any  person  under  the  age  of  sixteen  years  is  con- 
victed of  an  offense  punishable  by  imprisonment  in  the  penitentiary,  the  court 
before  whom  such  conviction  was  had  may,  in  its  discretion,  sentence  the  person  so 
convicted  to  imprisonment  in  the  county  jail  of  the  county  in  which  such  conviction 
was  had."  [Note:  While  the  statute  above  quoted  is  a  partial  recognition  of  the 
principles  which  govern  recent  legislation  upon  the  subject  of  juvenile  courts  and 
juvenile  offenders,  nevertheless  the  legislature  of  that  state,  and  of  other  states 
where  similar  laws  prevail,  should,  we  submit,  give  greater  latitude  to  the  courts  in 
dealing  with  this  class  of  eases.  The  fact  that  there  must  first  be  a  conviction  is 
not  a  safeguard  to  the  welfare  of  the  child  for  the  reason  that  the  principal  harm  is 
by  the  trial  and  conviction  themselves  inflicted  upon  him.] 

Oklahoma:     Juvenile  offenders,  Comp.  Laws  1909  (Snyder),  §§  8518-8565. 

Oregon:  Codes  and  Stats.  1902  (Bel.  &  Cot.),  §1449  et  seq.;  acts  as  to  employ- 
ment of  minors,  Laws  1907,  p.  302;  Laws  1909,  p.  194. 

South  Dakota:  Delinquent  minors,  Rev.  Code  Crim.  Proc.  1903,  §770;  Pol.  Code, 
§§  3205-3214;  as  to  contributory  dependency  and  contributory  delinquency  of  children, 
see  Sess.  Laws  1909,  pp.  421-424. 

Texas:  Supp.  Stats.  1908  (Sayles),  p.  124,  §§  1-7;  Supp.  Stats.  1910  (Sayles),  p.  218, 
Arts.   2941-2953. 

Utah:  Juvenile  courts,  Laws  1909,  ch.  122,  p.  324;  as  to  dependent,  neglected,  and 
ill-treated  children,  Laws  1909,  ch.  123,  p.  331. 

Washington:     Delinquent  children,  Codes  and  Stats.  1910   (Rem.  &  Bal.),   |5  8605- 
8615,  Sess.  Laws  1905,  p.  34;  reformatories,  §§  4380-4386,  Laws  1905,  p.  39. 
Wisconsin:     Juvenile  courts,  Stats.  1907,  ch.  573-1  to  573-9,  p.  762. 
Wyoming:     Juvenile    delinquents,    Rev.    Stats.    1899,    §§4930-4934    and    §4935    a* 
amended  in  Laws  1903,  ch.  106;  Rev.  Stats.  1899,  §  4936  et  seq. 


Ch.  CXLVIIL]  PETITION,   ETC.— FORMS.  1961 

FORM   No.  1296 — Petition  for  arrest  and  examination  of  a  delinquent  minor. 
(California.) 

The  People  of  the  state  of  California  ~) 

in  behalf  of  ,  > 

a  delinquent  child.  J 

State  of  California, 


County  of 

To  the  Honorable  Superior  Court  of  the  county  of  ,  state  of 

California : 

Your  petitioner,  ,  respectfully  represents  that  he  is  a  citizen 

of  the  United  States  and  of  the  state  of  California,  over  the  age  of 
twenty-one  years ;  that  the  above-named  ,  a  child  under  the  age 

of  sixteen  years,  to  wit,  the  age  of  years,  on  or  about  the 

day  of  ,  19     ,  is  now  within  said  county,  and  that  said  child  is  a 

delinquent  child  within  the  meaning  of  the  statute  made  and 
provided,  in  this,  that  said  child  [here  state  the  reasons  for  such 
delinquency]  ;  that  the  said  child  is  now  in  the  custody  and  under 
the  control  of  ;  that  the  names  and  residences  of  the  relatives 

of  said  child  living  in  said  county  are  as  follows:  [Here  state]  ;  that 
in  order  to  secure  the  attendance  of  said  child  at  the  hearing  of  said 
matter  it  will  be  necessary  that  a  citation  be  issued  to  the  said  cus- 
todian of  said  child,  and  to  [here  set  forth  names  of  such  other  par- 
ties as  may  be  cited  to  appear]. 

Wherefore,  your  petitioner  prays,  that  a  citation  issue  command- 
ing that  the  said  appear  before  this  court  on  the  day 
of  ,  19  ,  at  o'clock  M.,  with  the  said  minor  herein 
named,  and  that  upon  the  hearing  the  said  minor  be  dealt  with 
according  to  the  provisions  of  the  statute. 

[Signature.] 
[Verification.] 

FORM   No.  1297 — Citation  to  parent  or  custodian.     (California.) 

[Title  of  court  and  cause.] 

The  people  of  the  state  of  California  to  [parent  or  custodian]  : 
You  are  hereby  cited  and  required  to  appear  before  this  court  in 
the  city  of  ,  in  the  county  of  ,  state  of  California,  at  the 

courtroom  of  department  No.  ,  on  the  day  of  ,  19     , 

at  o'clock         M.  of  that  day,  and  bring  with  you  the  above- 

named  ,  a  child  under  the  age  of  sixteen  years,  and  then  and 


1962  JUVENILE  COURTS.  [Tit.  XVL'I. 

there  to  show  cause,  if  any  you  have,  why  said  child  should  not  be 
declared  to  be  a  delinquent  child,  according  to  the  petition  on  file 
herein. 

And  for  failure  to  attend  and  bring  said  child  with  you,  you  will 
be  deemed  guilty  of  a  contempt  of  court. 

By  order  of  the  superior  court,  in  and  for  the  county  of  ,  the 

seal  of  said  court  affixed,  this  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

FORM   No.  1298 — Certificate  of  service  of  citation.     (California.) 

Office  of  the  Sheriff  of  the 

county  of 

I  hereby  certify,  that  I  received  the  within  citation  on  the 
day  of  ,  19     ,  and  personally  served  the  same  on  the  day 

of  ,  19     ,  at  ,  in  the  said  county  of  ,  upon  the  within- 

named  ,  by  delivering  a  copy  of  said  citation  to  person 

ally  on  the  day  last  aforesaid. 

[Date.]  ,   Sheriff. 

By  ,  Deputy  Sheriff. 

FORM   No.  1299 — Notice  to  parents,  custodian,  or  guardian.     (Utah  practice, 
Laws  1909,  p.  327.) 

[Title  of  court  and  cause.]  x 

To  ,  [here  designate  relationship]  : 

You  are  hereby  notified  to  appear  within  two  days  after  the  serv- 
ice of  this  notice  upon  you,  if  served  within  the  county  wherein  the 
above  proceeding  is  pending,  otherwise  within  five  days,  and  assert 
and  defend  any  rights  to  custody,  control,  or  guardianship  you  may 
have  or  claim  over  or  in  the  above-named  child;  otherwise,  your 
default  will  be  entered  and  the  court  will  proceed  to  hear  and  deter- 
mine your  said  rights,  or  supposed  rights,  in  accordance  with  the 

lav  and  the  evidence.  .    ,T  ...         _         r        ,      .« 

A.  N.,  probation  officer  [or  sheriff, 

or  other  peace  officer]. 

[Return  of  officer  showing  service  to  be  annexed,  which  return  is 
by  statute  made  conclusive.] 

i  Under  the  Utah  statutes,  the  title  Is  provided  to  be:  "State  of  Utah  in  the 
interest  of  ,  delinquent":    Laws  1909,  ch.  122,  §  720x4,  p.  326. 


Cli.  CXLVIII.]  SUBPOENA,   COMMITMENT,  ETC.— FORMS.  1963 

FORM   No.  1300 — Subpoena.     (California.) 

[Title  of  court.] 
The  People  of  the  state  of  California  ") 

in  behalf  of  ,  > 

a  delinquent  [or  dependent]  child.  J 

The  people  of  the  state  of  California  to  : 

We  command  you,  that  all  and  singular  business  and  excuses 
being  laid  aside,  you  appear  and  attend  our  superior  court  of  the 
state  of  California,  in  and  for  the  county  of  ,  the  day 

of  ,  19     ,  at  o'clock        M.,  then  and  there  to  testify  in 

the  above-entitled  matter  now  pending  in  said  superior  court  , 

and  for  a  failure  to  attend  you  will  be  deemed  guilty  of  a  contempt 
of  court. 

Witness  the  Hon.  ,  judge  of  the  superior  court,  in  and  for 

the  county  of  ,  and  the  seal  of  said  court,  this  day  of 

,19     . 

Attest  my  hand  and  seal  of  said  court,  the  day  and  year  last  above 
written.  ,  Clerk. 

[Seal.]  By  ,  Deputy  Clerk. 

FORM   No.  1301 — Sheriff's  certificate  of  service  of  subpoena.     (California.) 

Office  of  the  Sheriff  of  the  J 

county  of  ,  > 

state  of  California.  ) 

I  hereby  certify  that  I  served  the  within  subpoena  on  the 
day  of  ,  19     ,  on  ,  being  the  witness  [or  witnesses]  named 

in  said  subpoena,  at  ,  in  the  county  of  ,  by  showing  the 

original  to  said  witness  [or  witnesses]  personally  and  informing  him 
[or  them]  of  the  contents  thereof. 

[Date.]  ,  Sheriff. 

By  ,  Deputy  Sheriff. 

FORM    No.  1302 — Commitment  of  dependent  child.     (California.) 

[Title  of  court.] 
In  the  matter  of 

a  dependent  child. 

The  above-named  ,  having  been  regularly  brought  before  the 

above-entitled  court  upon  petition  duly  verified  and  filed  herein,  as 


1964  JUVENILE  COURTS.  [Tit.  XVIII. 

provided  by  law,  said  petition  showing  that  said  is  within  the 

said  county  of  ,  and  is  a  dependent  child  within  the  meaning  of 

the  law,  and  due  notice  of  the  hearing  of  said  petition  having  been 
given  as  required  by  law  and  the  order  of  this  court,  and  due  return 
having  been  made  on  the  citation  issued  herein,  upon  a  full  hearing 
of  said  petition  and  of  the  case,  it  appearing  to  the  satisfaction  of 
the  court  that  said  is  under  the  age  of  sixteen  years,  to  wit, 

of  the  age  of  ,  and  that  he  resides  within  said  county  of  , 

and  is  a  dependent  child  within  the  meaning  of  the  law;  and  it 
further  appearing  that  it  is  for  the  best  interest  of  said  child  that  he 
be  committed  to  the  care  of  ,  and  that  said  is  willing  to 

receive  said  child,  if  committed  thereto  by  this  court : 

Now,  therefore,  it  is  hereby  ordered,  adjudged,  and  decreed,  that 
said  is  a  dependent  child  within  the  meaning  of  the  law,  and 

that  he  should  be,  and  he  is,  hereby  committed  to  the  care  of  , 

for  a  period  of  from  the  date  hereof. 

Done  in  open  court,  this  day  of  ,  19     . 

S.  T.,  Judge. 

FORM   No.  1303 — Commitment  of  delinquent  child.     (California.) 

[Title  of  court.] 
In  the  matter  of 

a  delinquent  child. 

The  above-named  ,  having  been  brought  before  the  superior 

court  of  the  state  of  California,  in  and  for  the  county  of  ,  upon 

the  order  and  certificate  of  the  justice  court  of  township  of  said 

county,  as  a  delinquent  child,  charged  in  the  court  with  the  offense 
of  ,  and  due  notice  of  the  hearing  of  said  charge  having  been 

given  as  required  by  law  and  the  order  of  this  court,  and  due  return 
having  been  made  on  the  citation  issued  herein,  upon  a  full  hearing 
in  this  court  had  on  the  day  of  ,  19     ,  it  appearing  that  it 

is  for  the  best  interest  of  said  that  he  should  be  committed  to 

the  care  of  for  the  period  of  : 

Now,  therefore,  it  is  hereby  ordered  and  adjudged,  that  said 
be  and  he  is  hereby  committed  to  the  care  of  ,  for  the  period 

of  from  the  date  of  this  order. 

Done  in  open  court,  this  day  of  ,  19     . 

S.  T.,  Judge. 


Cn.  CXLVIII.]  ORDERS,   RETURNS,    ETC.— FORMS.  1965 

FORM  No.  1304 — Bench  warrant.     (California.) 

[Title  of  court  and  cause.] 
State  of  California,") 
County  of  .  j 

The  people  of  the  state  of  California  to  any  sheriff,  constable,  mar- 
shal, policeman,  or  special  police  officer  in  this  state : 

A  verified  petition  having  been  filed  on  the  day  of  t 

19     ,  charging  ,  a  child  under  the  age  of  sixteen  years,  with 

being  a  child : 

You  are  therefore  commanded  forthwith  to  arrest  the  above-named 
and  bring  before  this  court,  or,  if  the  court  be  not  in 

session,  that  you  keep  in  some  suitable  place  pending  the 

further  order  of  this  court. 

Witness  my  hand  and  the  seal  of  the  court,  this  day  of  , 

19     . 

S.  T.,  Judge  of  Superior  Court. 

FORM   No.  1305 — Order  directing  time  of  service  of  bench  warrant.     (Cali- 
fornia.) 

State  of  California, ") 
County  of  .     J 

Superior  Court,  Dept. 

This  warrant  may  be  served  and  executed  by  day  or  night,  and 
the  arrest,  as  commanded  in  this  warrant,  is  hereby  authorized  and 
directed  to  be  made  at  any  time  of  the  day  or  night. 

Dated  this  day  of  ,  19     . 

S.  T.,  Judge  of  Superior  Court. 

FORM   No.  1306 — Return  endorsed  upon  bench  warrant.   (California.) 
State  of  California," 


County  of 

To  the  Honorable  the  Superior  Court,  department  No.  ,  of 

the  county  of  : 

I,  the  undersigned  ,  do  hereby  make  this  my  return  to  this 

warrant,  and  do  hereby  certify  that  I  have  executed  and  served  this 
warrant  by  arresting  the  within-named  defendant  this  day 

of  ,  19     ,  who  at  the  time  of  the  arrest  declares  his  true  name 


1966  JUVENILE  COURTS.  [Tit.  XVIII. 

to  be  ;  and  I  do  herewith  bring  said  defendant  before  the 

superior  court,  department  No.  ,  as  commanded  in  this  warrant. 

[Date.]  [Signature  of  officer.] 

FORM   No.  1307— Order  admitting  to  bail.     (California.) 
State  of  Calif ornia,1 

s  SS. 

County  of  .J 

The  within-named  may  be  admitted  to  bail,  by  bond,  in  the 

sum  of  $  ,  or  by  the  deposit  with  the  clerk  of  this  court  of 

$  in  coin. 

[Date.]  S.  T.,  Judge  of  Superior  Court. 

FORM   No.  1308 — Order  of  commitment  to  school  of  industry.     (From  court 
of  record,  California.) 

State  of  California,^) 
County  of  .j 

,  a  boy  of  the  age  of  years,  having  been  found  guilty 

by  the  superior  court  of  the  state  of  California,  in  and  for  the  county 
of  ,  of  the  offense  of  ,  and  he  being,  in  the  opinion  of  the 

court,  a  fit  subject  for  commitment  to  the  school  of  industry 

at  ,  the  court  doth  now  suspend  judgment  [or  sentence,  as  the 

case  may  be]  ;  and 

It  is  ordered,  that  the  said  be  and  he  is  hereby  committed  to 

the  said  school  of  industry,  at  ,  until  he  reaches  the  age  of 

twenty-one  years,  unless  sooner  discharged,  as  by  law  provided. 

It  is  further  ordered,  that  ,  sheriff  of  County,  do  forth- 

with take  into  his  custody  the  said  and  deliver  him  to  the 

superintendent  of  the  said  school  of  industry  at  ,  together 

with  this  commitment. 

And  this  is  to  authorize  the  superintendent  of  said  school  of 

industry  to  receive  and  safely  keep  the  said  until  he  reaches 

the  age  of  twenty-one  years,  or  until  he  is  legally  discharged. 

Witness  the  Hon.  ,  judge  of  the  superior  court  of 

County,  this  day  of  ,  19     . 

[Seal.]  ,  Clerk. 

By  ,  Deputy  Clerk. 

Witness  my  hand  this  day  of  ,  19     . 

[Judge's  signature.] 


Ch.  CXLVIII.]  COMMITMENTS,  ETC.— FORMS.  1907 

[Endorsement  of  receipt  of  commitment.] 

Received  from  ,  [deputy]  sheriff  of  County,  ,  this 

y  '  '  [Signature], 

Superintendent  School  of  Industry. 

[Request  for  Information  concerning  delinquent  endorsed  on  commitment.] 

Under  the  California  practice,  the  committing  magistrate  is  gener- 
ally requested  to  furnish  to  the  school,  upon  the  oath  of  the  defend- 
ant or  some  competent  witness,  the  following  information : 

Date  of  birth:  . 

Place  of  birth: 

If  foreign  born,  state  country,  and  number  of  years  he  has  been  in  the  United 

States: 
Parents — Divorced?  .     Living  apart?  a 

Father:     Name,  .     Living? 

Address: 

Place  of  birth— United  States?  .     Foreign? 

If  foreign  born,  state  country,  and  number  of  years  he  has  been  in  the  United 
States: 

Occupation: 

Character — Intemperate?  .    In  jail  or  prison?  « 

Mother:     Name,  .     Living? 

Address: 

[State  whether  divorced,   re-married,   or  living  apart  from  husband.] 

Place  of  birth— United  States?  .     Foreign? 

If  foreign  born,  state  country,  and  number  of  years  she  has  been  in  the  United 
States: 

Character — Intemperate?  .     In  jail  or  prison? 

If  parents  are  dead,  or  lost,  name  and  address  of  guardian  or  near  relatives:  < 

Defendant's   character — Does   he   use   tobacco?  .     Cigarettes?  . 

Intemperate? 
Former  convictions  [if  any]:  * 

[Verification.]  [Signature.] 

FORM   No.  1309 — Order  of  commitment  to  boys'  school  of  industry.     (From 
court  of  limited  jurisdiction — California.) 

State  of  California,")    ( 
County  of  .J 

,  a  boy  of  the  age  of  years,  having  been  found  guilty 

by  the  court  of  the  county  of  ,  state  of  California, 

a  court  of  competent  jurisdiction,  of  the  offense  of         ,  and  he  being, 
in  the  opinion  of  the  court,  a  fit  subject  for  commitment  to  the 
school  of  industry,  at  ,  the  court  doth  now  suspend  judgment 

[or  sentence,  as  the  case  may  be]  ; 

And  conformable  to  the  provisions  of  an  act  of  the  legislature  of 
the  state  of  California,  entitled  "An  act  to  establish  a  school  of 
industry,  to  provide  for  the  management  and  maintenance  of  the 


1968  JUVENILE  COURTS.  [Tit.  XVIII. 

same,  and  to  make  an  appropriation  therefor, ' '  approved  ,  19    y 

and  the  several  acts  amendatory  thereof  or  supplemental  thereto : 

It  is  ordered,  that  the  said  be  and  he  is  hereby  committed  to 

the  said  school  of  industry,  for  the  term  of  years,  unless 

sooner  discharged,  as  in  said  act  provided. 

It  is  further  ordered,  that  ,  sheriff  of  County,  do  forth- 

with take  into  his  custody  the  said  ,  and  deliver  him  to  the 

superintendent  of  the  said  school  of  industry,  at  ,  Cali- 

fornia, together  with  this  commitment. 

And  this  is  to  authorize  the  superintendent  of  said  school  of 

industry  to  receive  and  safely  keep  the  said  for  the  period  of 

years,  or  until  he  is  legally  discharged. 

[Date.]  S.  T.,  Judge  of  the  Court  of  the  city  of 

[Approval  of  foregoing  commitment  by  superior  judge.] 

State  of  California,^) 

>  ss. 
County  of  .  j 

The  commitment  of  the  within-named  to  the  school  of 

industry,  at  ,  for  the  period  within  named,  is  hereby  approved 

by  me,  judge  of  the  superior  court  of  the  county  aforesaid,  this 

day  of  ,  19     . 

Attest :  S.  T.,  Judge. 

,  Clerk. 

By  ,  Deputy  Clerk. 

FORM   No.  1310 — Affidavit  on  application  for  a  permit  for  a  minor  child  to 
work.     (California.) 

[Title  of  court  and  cause.] 
State  of  California,") 
County  of  .  j 

,  being  first  duly  sworn,  says:    That  he  is  the   [here  state 
if  parent  or  guardian]   of  ,  a  minor  child;  that  said  child  is 

over  the  age  of  twelve  years,  to  wit,  of  the  age  of  years,  and 

that  the  parent [s]  of  said  child  is  [are]  incapacitated  from  perform- 
ing any  labor  through  illness. 

Subscribed  and  sworn  to  before  me,  this  day  of  ,  19     . 

[Seal.]  ,  County  Clerk. 

By  ,  Deputy  Clerk. 


.  ss. 


Ch.  CXLVIII.]  ORDERS,   ETC.— FORMS.  1969 

FORM   No.  1311 — Recommendation  that  permit  issue. 

[Title  of  court  and  cause.] 

1  hereby  certify,  that  I  have  investigated  the  case  of  ,  and 

recommend  that  a  permit  be  issued  allowing  said  child  to  work,  said 
child  being  able  to  read  and  write. 

C.  D.,  Probation  Officer. 
By  ,  Deputy. 

FORM   No.  1312 — Order  granting  permit. 

[Title  of  court  and  cause.] 

In  accordance  with  the  above  sworn  statement  and  recommenda- 
tion, the  above-named  is  permitted  to  work  for  hours  per 
day  between  the  hours  of  7  o'clock  A.  M.  and  10  o'clock  P.  M.,  at 
such  occupations  as  are  or  may  hereafter  be  permitted  and  authorized 
by  law.  This  permit  to  be  good  for  one  year  from  the  date  hereof. 
iDate.] 

S.  T.,  Judge  of  the  juvenile  department 
of  the  superior  court  of  the  county 
of         ,  state  of  California. 


TABLE  OF  CASES 


[References  are  to  pages.] 


Abadie  v.  Carrillo  (Cal.),  1277,  1278. 

Abbott  v.  Rowan  (Ark.),  36. 

Abraham  v.  Browder  (Ala.),  146. 

Abrams,   In  re   (Cal.),   1003. 

A.  C.  Conn  Co.  v.  Little  Suamico  Lumber 

etc.  Co.   (Wis.),  1669. 
A.  C.  L.  Haase  &  Sons  etc.  v.  Merchants' 

D.  T.  Co.   (Mo.),  62. 
Ada  etc.  Co.  v.  Farmers  etc.  Co.  (Idaho), 

1224. 
Adams  v.  Haskell   (Cal.),  893. 
Adams  v.  Messinger  (Mass.),  1773- 
Adams  v.  Trigg  (Mo.),  70. 
Adler  v.  Railroad   (Mo.),  1263. 
Adler  v.  Staude  (Cal.),  1937. 
Aetna    Building    &    L.    Assn.    v.    Randall 

(Okla.),  333. 
Afflerback  v.  McGovern  (Cal.),  1649. 
Agard  v.  Valencia  (Cal.),  1774. 
Ah  Fong  v.  Sternes  (Cal.),  349,  1820. 
Ah  Tong  v.  Earle  Fruit  Co.   (Cal.),  1323. 
Akin  v.  Newell  (Ark.),  349. 
Alain    v.    Northern    Pacific    R.    R.    Co. 

(Minn.),  1478. 
Alameda  County  v.  Crocker  (Cal.),  1933. 
Albertoli  v.  Branham  (Cal.),  1582,  1594. 
Alden  v.  Carpenter  (Colo.),  330. 
Aldis  v.  Schleicher  (Cal.),  176. 
Aldrich  v.  Anchor  Coal  etc.   Co.    (Ore.), 

619. 
Aldrich  v.  Barton   (Cal.),  423,   424,  438. 
Aley  v.  Railroad  Co.   (Mo.),  147. 
Alexander  v.  Alexander  (Ind.),  499. 
Alexander  v.  Central  L.  &  M.  Co.  (Cal.), 

67. 
Alexander  v.  McDow  (Cal.),  130. 
Alexander  v.  Monroe  (Ore.),  275. 
Alison  v.   Goldtree   (Cal.),   1157. 
Allen  v.  Allen   (Cal.),   730,   734. 
Allen  v.  Baxter  (Wash.),  1710. 
Allen  v.  Blanche  G.  M.   Co.    (Colo.),  276, 

332,  814. 
Allen  v.  Church  (Iowa),  1936. 
Allen  v.  Cook   (Iowa),  1936. 
Allen  v.  McCarthy  (Minn.),  1613. 
Allen  v.  Patterson   (N.  Y.),  1278. 
Allen  v.  Transit  Co.  (Mo.),  1544. 
Aller  v.  Aller  (N.  J.),  1500. 
Allenspach  v.  Wagner  (Colo.),  36. 
Alpers  v.  Bliss   (Cal.),   1934. 


Alpers  v.  Hunt  (Cal.),  1934. 

Alta  Silver  Min.  Co.  v.  Alta  Placer  Min. 

Co.    (Cal.),    68. 
Altgelt  v.  Emilienburg  (Tex.),  70. 
Altheimer  v.  Teuscher  (Mo.),  225. 
Alywin  v.  Morley  (Mont.),  95. 
Amalgamated  G.  &  L.  Co.  v.  Bay  State 

Z.  M.  Co.   (Mo.),  249,  273. 
Amer  v.  Hightower  (Cal.),  1604. 
Ames  v.  United  R.  Co.  (Mass.),  1492. 
American  Bonding  Co.  v.  Dufur  (Wash.), 

1432. 
American    Brewing    Co.    v.    City    of    St. 

Louis  (Mo.),  668,  691.  1293. 
American      Buttonhole      Co.      v.      Mcore 

(Dak.),  271. 
American   C.    Co.   v.    Eureka  Bazaar   (S. 

Dak.),  273. 
American  Copying  Co.  v.  Muleski   (Mo.), 

333,  1263. 
American     Fire     Ins.     Co.     v.     Landfare 

(Neb.),   1934. 
American    Ins.    Co.    v.    Gilbert    (Mich.), 

1357. 
Ames  v.  San  Diego  (Cal.),  793. 
Amis  v.  Cooper  (Ark.),  90. 
Anable  v.  McDonald  L.  &  M.  Co.  (Mo.), 

63. 
Anaheim   U.   W.   Co.   v.    Ashcroft   (Cal.), 

1211,    1217. 
Anderson  v.  Burchett  (Kan.),  1826. 
Anderson  v.  Englehart  (Wyo.),  753. 
Anderson  v.  Hayes  (Wis.),  1540. 
Anderson  v.  McClellan   (Ore.),  1826. 
Anderson  v.   Schloesser  (Cal.),  611,   1806. 
Anglo-California    Bank    v.    Field    (Cal.), 

1821. 
Anglo-California  Bank  v.  Grangers'  Bank 

(Cal.),   600. 
Angus  v.  Robinson's  Admr.  (Vt.),  1774. 
Andrus  v.  Insurance  Co.  (Mo.),  1357. 
Angus  v.   Craven    (Cal.),   776,   1794,   1801, 

1824. 
Anthony  v.  Norton  (Kan.),  404,  405. 
Anthony  v.  Nye   (Cal.),  246. 
Apker  v.  City  of  Hoquiam   (Wash.),  670. 
Arbois  v.   San  Bernardino   (Cal.),   649. 
Archibald    v.    Lincoln    County    (Wash.), 

202,  203. 


(1971) 


1972 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Arkansas  etc.  R.  Co.  v.  Stroude  (Ark.), 

1864. 
Arlington  v.  Liscom  (Cal.),  734. 
Armstrong,  Byrd  &  Co.  v.  Crump  (Okla.), 

128. 
Arnold  v.  Pope  (Utah),  63,  65. 
Aronson  v.  Frankfurt  etc.  I.  Co.   (Cal.), 

330. 
Arguello  v.  Bours  (Cal.),  1135,  1773. 
Argus    Print   Co.,   In   re    (N.    Dak.),    600, 

1699. 
Armstrong,  Byrd  <fc  Co.  v.  Crump  (Okla.), 

69. 
Arques  v.  Union  S.  Bank  (Cal.),  184. 
Arzaga  v.   Villalba  (Cal.),   1603. 
Ashland  L.  Co.  v.  Detroit  S.  Co.   (Wis.), 

272. 
Ashley  v.  Little  Rock  (Ark.),  33. 
Ashley  v.  May  (Ark.),  1869. 
Ashley  v.  Pick  (Ore.),  1700. 
Ashton  v.  Heydenfeldt  (Cal.),  1649. 
Askey  v.  Williams  (Tex.),  433. 
Aston  v.  Nolan  (Cal.),  1090. 
Atchison  etc.  Co.  v.   Board  of  Commis- 
sioners (Kan.),  79. 
Atchison  etc.  R.  Co.  v.  Cochran  (Kan.), 

1502. 
Atchison  etc.  R.  Co.  v.  Ledbetter  (Kan.), 

1458. 
Atchison  etc.  R.  Co.  v.  O'Melia  (Kan.), 

1540. 
Atchison   etc.   R.   Co.   v.    Sadler    (Kan.), 

1458. 
Atchison  T.  &  S.  F.  R.   Co.  v.  Wiggins 

(Okla.),  691. 
Athearn  v.  Ryan  (Cal.),  770,  790,  907,  908, 

1849. 
Atkins  v.   Nordyke-Marmon  Co.    (Kan.), 

1934. 
Atterbury  v.  Hendricks  (Mo.),  70. 
Aulbach  v.  Dahler  (Idaho),  30. 
Aull  v.  Missouri  Pacific  (Mo.),  70. 
Aurrecoechea  v.  Sinclair    (Cal.),    31. 
Austin  v.  Jones  (Kan.),  1133. 
Austin  v.  Rawdin   (N.  Y.),  34. 
Auzerais  v.  Naglee  (Cal.),  1288,  1852. 
Avery  v.  Clark  (Cal.),  1105. 
Ayers  v.  Anderson-Tully  Co.  (Ark.),  130, 

1447. 
Aylesbury  M.  Co.  v.  Fitch  (Okla.),  78,  79. 
Ayres  v.  Burr  (Cal.),  1811. 

Babcock  v.  Briggs  (Cal.),  1699. 
Babcock  v.  Goodrich  (Cal.),  870. 
Babcock-Cornish       Co.       v.        Urquhart 

(Wash.),  146,  1583. 
Bachman  v.  Cathry   (Cal.),   235. 
Back  v.  State  (Neb.).  1866. 


Badger  Brass  M.  Co.  ▼.  Daly  (Wis.),  69. 

Badostain  v.  Grazide  (Cal.),  390. 

Bailey  v.  Costello  (Wis.),  1933. 

Bailey  v.  Dennis  (Mo.),  1650. 

Bailey  v.  Leishman   (Utah),  1262. 

Bailey  v.  Riverside  Township  (Kan.),  79. 

Bailey  v.  Rockafellow  (Ark.),  246. 

Baisley  v.  Baisley  (Mo.),  1810. 

Baker  v.  Backus  (111.),  1713. 

Baker  v.  Baker  (Cal.),  500,  515. 

Baker  v.  Berry  (Mo.),  35. 

Baker  v.  Cordwell  (Colo.),  1649. 

Baker  v.  Insurance  Co.  (Ore.),  1357. 

Baker  v.  Wasson  (Tex.),  601. 

Bales  v.  Cannon  (Colo.),  1031. 

Ball  v.  Bruce  (111.),  406. 

Ball  v.  Fullon  Co.  (Ark.),  80. 

Ball  v.  Rankin  (Okla.),  106. 

Ball  v.   Texarkana  Water  Corp.    (Tex.), 

63. 
Ballard  v.  Burgett  (N.  T.),  1417. 
Ballard  v.  Edmonston  (Fed.),  555. 
Ballard  v.  Golob  (Colo.),  276. 
Baltimore  etc.  R.  Co.  v.   Faunce   (Md.), 

1293. 
Bane  v.  Peerman  (Cal.),  62. 
Bank  v.  Armstrong  (Mo.),  1933. 
Bank  v.  Goldsoll    (Mo.),    108. 
Bank  v.  Stone  (Mo.),  70. 
Bank  v.  Williams  (Kan.),  1297. 
Bank  of  Antigo  v.  Ryan  (Wis.),  270. 
Bank  of  B.  N.  A.  v.  Suydam  (N.  Y.),  200. 
Bank  of  Commerce  v.  Chambers   (Mo.), 

1156. 
Bank  of  LeRoy  v.  Harding  (Kan.),  1319. 
Bank  of  Monett  v.  Stone  etc.    (Mo.),  70. 
Bank     of    North     America    v.     Crandall 

(Mo.),   277. 
Bank  of  Ukiah  v.  Moore  (Cal.),  1669. 
Banta  v.  Wise  (Cal.),  730. 
Bantley  v.  Finney  (Neb.),  1806,  1849. 
Baptist  Church  v.  Jones   (Miss.),  1157. 
Barbieri  v.  Ramelli  (Cal.),  729. 
Bardwell  v.  Stubbert  (Neb.),  1649. 
Barker  v.  Railroad  (Mo.),  1502. 
Barkly  v.  Copeland  (Cal.),  390. 
Barlow  v.  Scott  (N.  Y.),  33. 
Barnard  v.  Wilson  (Cal.),  1063. 
Barndt  v.  Frederick  (Wis.),  1580. 
Barnes  v.  Barnes  (Cal.),  498. 
Barnes  v.  Glide  (Cal.),  275. 
Barnes  v.  Plessner  (Mo.),  1649,  1650. 
Barnes  v.  Van  Keuren  (Neb.),  1409. 
Barnet  v.  National  Bank  (U.  S.),  1294 
Barnhart  v.  Ford  (Kan.),  1134. 
Barnhouse,  In  re  (Kan.),  1865. 
Barr  v.  Lake   (Mo.),  70. 
Barr  v.  Post  (Neb.),  368,  1933. 


TABLE  OF  CASES. 


1973 


[References  are  to  pages.] 


Barrett-Hicks  Co.  v.  Glas   (Cal.),  942. 
Barrio  v.  United  Railroads  (Mo.).  31,  146, 

1582,  1593,   1594. 
Barry  v.  Suchy  (Kan.),  1461. 
Barry,  Ex  parte  (Cal.),  67. 
Barth  v.  Graf  (Wis.),  1030. 
Barthgate  v.   Irvine   (Cal.),   1900. 
Bartlett  v.  Atchison,   T.   &  S.   F.   R.   Co. 

(Kan.),   1669. 
Bartlett  v.  Batts   (Ga.),  433. 
Bartlett  v.   Chicago  etc.   R.    Co.    (Okla.), 

202,  1503. 
Bartlett  v.   State   (Kan.),   834. 
Barton    v.    Riverside    Water    Co.    (Cal.), 

1208. 
Bascomb  v.  Bascomb  (N.  H.),  451. 
Batchelder  v.  Moore  (Cal.),  893. 
Bates  v.  Childers  (N.  Mex.),  951. 
Bates  V.  Delavan   (N.  Y.),  1883. 
Bates  v.  Robinson  (Iowa),  1850. 
Bates   v.    Santa   Barbara  County    (Cal.), 

1900. 
Bath  v.  Valdez  (Cal.),  1063. 
Bauman  v.  Chambers  (Tex.),  145. 
Baumgarten  v.  Mitchell   (Cal.),  794. 
Baxter  v.  St.  Louis  Tr.  Co.   (Mo.),  433. 
Beacannon  v.  Liebe  (Ore.),  8. 
Beakey  v.  Meerschen  (Kan.),  37,  91,  729. 
Bean  v.  Travelers'  Ins.  Co.  (Cal.),  170. 
Beard  v.  Beard  (Cal.),  499. 
Beasley  v.   Linahan  Transfer  Co.    (Mo.), 

1460. 
Beaton  v.  Reid  (Cal.),  1179. 
Beatty  v.  Russell  (Neb.),  1331. 
Beave   v.    St.    Louis    Transit   Co.    (Mo.), 

1543. 
Beckwith,  Estate  of,  v.  Golden  Rule  Co. 

(Minn.),   141. 
Bee     Publishing     Co.     v.     World-Herald 

Pub.  Co.   (Neb.),  391,  392. 
Beebe  v.  Bahr  (Neb.),  730. 
Beeney  v.  Irwin   (Colo.),   649. 
Begbie  v.  Begbie  (Cal.),  1899,  1900. 
Behm  v.  Armour  (Wis.),  1540. 
Behrens,  Estate  of   (Cal.),  130. 
Behrens  v.  Insurance  Co.   (Iowa),  1357. 
Bell    v.    Bank    of    California    (Cal.),    33, 

65,  1649,  1773,  1774. 
Bell  v.  Campbell   (Mo.),   146. 
Bell  v.  Camm  (Cal.),  1821,  1826. 
Bell  v.  Good  (N.  T.),  1827. 
Bell  v.  Kaiser  (Mo.),  1333. 
Bell  v.  Peck  (Cal.),  682. 
Bell  V.  Rinker   (Ind.),  407. 
Bell  v.  T.  W.  Co.  (Tex.),  63. 
Bellingham  v.  Linck  (Wash.),  1853. 
Bellows  v.  Shannon  (N.  Y.),  1884. 
Belt  v.  Spaulding  (Ore.),  1431. 
Juri  *s  PI.— 125. 


Belt  v.  Wash.  W.  P.  Co.   (Wash.),  146. 
Belvee  v.  Boardman  (Iowa),  407. 
Bemmerly  v.  Smith  (Cal.),  1899. 
Benedict  v.  Arnoux  (N.  Y.),  1827. 
Benesch  v.  Waggner  (Colo.),  1604,  1649. 
Benicia  Agricultural  Works  v.  Creighton 

(Ore.),  330,  1398. 
Benkert  v.  Benkert  (Cal.),  1743. 
Bennett  v.  Bennett  (Neb.),  1934. 
Bennett     v.     Northern     Pacific     E.     Co. 

(Ore.),  1870. 
Bennett  v.   Insurance  Co.    (Conn.),    1357. 
Benson  v.  Battey  (Kan.),  78,  244. 
Benson  v.  Braun   (Cal.),  1900. 
Benson  v.  City  of  Ottumwa  (Iowa),  108, 

433. 
Benton  v.  Benton  (Cal.),  515. 
Bequette  v.  Patterson  (Cal.),  30. 
Berdell  v.  Bissell  (Colo.),  330. 
Berlin    v.    Eureka    Lodge    K.    P.    (Cal.), 

1263. 
Bernheim    Dist.    Co.    v.    Elmore    (Cal.), 

65,    269,    272. 
Berry  v.   Cammet   (Cal.),   1396. 
Berry  v.  Dryden  (Mo.),  391. 
Berry  v.  Ewing  (Mo.),  8. 
Berry  v.  Jagoe  (Tex.),  277. 
Berry  v.  St.  Louis  R.  Co.  (Mo.),  433. 
Berryman  v.  Graham  (N.  J.),  1790. 
Bertholf  v.  O'Reilly  (N.  Y.),  1615. 
Bethune  v.  Cleveland,  St.  L.  &  K.  C.  R. 

Co.   (Mo.),  951. 
Bettner  v.  Holt  (Cal.),  388. 
Betz  v.  Williams  &  White  L.  &  L.  Co. 

(Kan.),  1333. 
Bevins  v.  Barnett  (Ark.),  245,  246. 
Bick  v.  Clark  (Mo.),  1287,  1397. 
Bick  v.  Dry  (Mo.),  142,  269. 
Bick  v.  Tanzey  (Mo.),  1447. 
Bick  v.  Vaughn   (Mo.),  105,   107,   1447. 
Bick  v.  Yates  (Mo.),  162,  1397. 
Biddel  v.  Brizzolara  (Cal.),  274. 
Bidwell  v.  Babcock  (Cal.),  616. 
Bidwell  v.  Rice  (Wash.),  1105. 
Bieri  v.  Fonger  (Wis.),  64. 
Biermann    v.     Guaranty    M.     L.     I.     Co. 

(Iowa),  95,  1582. 
Bigelow  v.  Ballerino    (Cal.),   670. 
Bigley  v.  Nunan  (Cal.),  747. 
Bigne  v.  David  (Ore.),  1029. 
Bimber  v.  Calivada  Co.  (Fed.),  599. 
Birch  v.  Benton  (Mo.),  391. 
Birch  v.  Cooper  (Cal.),  244. 
Birsch  v.  Citizens'  Electric  Co.   (Mont-), 

1544. 
Bishop  v.  McHenry  (Kan.),  1852. 
Black  v.  Black  (Mont.),  496. 


1974 


TABLE  OF  CASES. 
[References  are  to  pages.] 


Blackburn    v.    Washington    G.   M.     Co. 

(Wash.),   1852,   1853. 
Blackman  v.  McAdams  (Mo.),  277. 
Blackman  v.  Pierce   (Cal.),  1604. 
Blair  v.  Breeding  (Tex.),  730. 
Blake  v.  Blake  (Wis.),  497. 
Blake  v.  Coleman  (Wis.),  177. 
Blake    v.    National    Life    Insurance    Co. 

(Cal.),   1353. 
Blanc  v.  Paymaster  Min.  Co.  (Cal.),  1593. 
Blanchard  v.   Blanchard   (Cal.),   475,   493. 
Blankinship   v.    Oklahoma   City    etc.    Co. 

(Okla.),   911,   1648. 
Bliss  v.  Cottle   (N.  T.),  1604. 
Bliss  v.  Sneath  (Cal.),  65,  275. 
Block  v.  Dorman  (Mo.),  274. 
Blodgett  v.  McMurtry  (Neb.),  127. 
Blodgett  v.  State   (Neb.),  1866. 
Bloedel  v.  Zimmerman  (Neb.),  1615. 
Blood  v.  Fairbanks  (Cal.),  33. 
Blood  v.  Harrington   (Mass.),  433. 
Blood  v.  Sovereign  Camp   (Mo.),  68,  146. 
Bloomfield  v.  Pinn   (Neb.),  392. 
Bloom ingdale  v.   Du  Rell    (Idaho),    1863, 

1864. 
Bluett  v.  Wilce  (Wash.),  1156. 
Blythe  &  Fargo  Co.  v.  Swenson  (Utah), 

231. 
Board     of     Commissioners     of     Sheridan 

County  v.  Demebrink  (Wyo.),  649. 
Board     of     Commissioners    v.     Shawnee 
County  (Miller  &  State)    (Kan.),  880. 
Board     of     Commissioners     v.     Younger 

(Cal.),  1849. 
Board   of   Commissioners   of   Montezuma 

County  v.  Wheeler   (Colo.),   649. 
Board  of  Education  v.   Prior   (S.   Dak.), 

72. 
Board  of  Home  Missions  etc.  v.  Maughan 

(Utah),  894. 
Bode  v.  Lee  (Cal.),  1934. 
Bogart  v.  Woodruff  (Cal.),   246. 
Bohn  v.  Wilson   (Ore.),  66,  162,   951,   952. 
Bohnert  v.  Bohnert  (Cal.),  499. 
Boles  v    Linthicum  (Tex.),  1157. 
Bollman  v.  Pasewalk  (Neb.),  679,  681. 
Bonnell  v.  Griswold  (N.  Y.),  63. 
Bonesteel  v.   Bonesteel   (Wis.),   8. 
Boon  v.  Root  (Wis.),  1105,  1575. 
Booream  v.  Potter  Hotel  Co.   (Cal.),  160, 

357,    1868. 
Boosalis  v.  Stevenson  (Minn.),  1287. 
Booth  v.  Hoskins  (Cal.),  734. 
Booth  &  Co.  v.  Weigand  (Utah),  272. 
Bordeaux  v.  Bordeaux   (Mont.),  498,   499. 
Borden  v.  Lynch   (Mont.),  108. 
Bories   v.    Union    B.    &    L.    Assn.    (Cal.), 
1900. 


Borrer  v.  State  (Tex.),  1866. 
Bortonneau   v.    Board   of   Directors   etc. 

(Fed.),    411. 
Boulden  v.  Jennings  (Ark.),  36,  1836. 
Bowen  v.  Wendt  (Cal.),  748. 
Bowling  v.  McFarland  (Mo.),  35,  62. 
Boyd  v.  Dodson  (Cal.),  440. 
Boyer  v.  East  (N.  Y.),  276. 
Boyer  v.  Northern  Pacific  R.  Co.  (Idaho), 

1821. 
Boyer  v.  Pack   (N.  Y.),  1293. 
Brackett  v.  Banegas   (Cal.),   733. 
Braden  v.  Hoffman   (Ohio),  1447. 
Bradfield  v.  Avery  (Idaho),  904. 
Bradley  v.  Harkness  (Cal.),  822. 
Bradley  v.   Iowa  Central  R.   Co.    (Iowa), 

1237. 
Bradley  v.  Railway  (Mo.),  1460. 
Bradshaw  v.  Hedge   (Iowa),  1884. 
Brainard  v.  Van  Kuran  (Iowa),  730. 
Braly  v.  Fresno  City  R.  Co.  (Cal.),  1486, 

1833,   1875,   1904. 
Branham   v.   Mayor   of   San   Jose    (Cal.), 

31. 
Branham  v.   Stallings    (Colo.),   1261. 
Brannon  v.  Silvernail   (111.).  1616. 
Brantigam  v.  While  (111.),   1616. 
Bray  v.  Marshal  (Mo.),  270. 
Breimeyer   v.    Star    Bottling    Co.    (Mp.'i, 

244,  245. 
Brenot  v.  Brenot  (Cal.),   1899. 
Brewer,  Estate  of  (Cal.).  1936. 
Bricken  v.  Cross  (Mo.),  1133. 
Bridgeton  v.  Jones  (Mo.),  274. 
Briggs  v.  Boyd  (N.  Y.),  1565. 
Briggs  v.  Breen   (Cal.),  1031. 
Brill  v.  Carsley  (Cal.),  920. 
Brison  v.  Brison  (Cal.),  1934. 
British   Columbia   Bank   v.    Page    (Or©.), 

272. 
Brode  v.  Goslin  (Cal.),  1936. 
Broderick  v.  Andrews  (Mo.),  128,  146.  331, 

1248. 
Bronson  v.  Kinzie   (U.  S.),  734. 
Brooklyn  Creamery  Co.  v.  Friday  (Wis.), 

108,   1288. 
Brooks  v.  Chilton  (Cal.),  1398. 
Brophy  v.  Downey  (Mont.),  729. 
Brown  V.  Bledsoe   (Idaho),  1582. 
Brown   v.    Chicago    etc.    R.    Co.    (Kan.), 

1543. 
Brown  v.  Edsall   (S.  Dak.),  71. 
Brown  v.   Evans   (Fed.),   368. 
Brown,  Ex  parte   (Ariz.),   1S66. 
Brown    v.    Freeman    &    Bynum     (Ala.), 

1500. 
Brown  v.  Hannibal  R.  Co.    (Mo.),  368. 
Brown  v.  Kingsley  (Iowa),  406. 


TABLE  OF  CASES. 


1975 


[References  are  to  pages.] 


Brown  v.  Los  Angeles  R.  Co.  (Cal.),  1521, 

1546. 
Brown  v.  Railroad  Co.  (Wis.),  1492. 
Brown  v.  Merrill   (Cal.),   616. 
Brown  v.  Orr  (Cal.),  1398. 
Brown  v.  Phillips  (Wis.),  63. 
Brown  v.   Quinton  (Kan.),   1031. 
Brown    v.    San    Francisco    Gas    L.    Co. 

(Cal.),   600. 
Brown  v.  Saul  (La.),  729. 
Brown  v.  Seattle  (Wash.),  670,  974. 
Brown  v.  Weldon   (Mo.),   1248. 
Brown    Chemical   Co.    v.    Meyer   (U.    S.), 

1613. 
Brown-Foreman  Co.  ▼.  Peterson  (Minn.), 

141. 
Brownell  v.  Pacific  R.  Co.   (Mo.),  1883. 
Brownlee  v.  Reiner  (Cal.),  1934. 
Broyhill  v.   Norton   (Mo.),   1439. 
Bruce  v.   Endicott   (Colo.),   36. 
Bruck  v.  Tucker  (Cal.),  1774. 
Brumagim  v.  Tillinghast  (Cal.),  691,  692. 
Bruner  v.  Bruner  (Tex.),  498. 
Bruner  v.  Brotherhood  of  American  Yeo- 
men  (Iowa),   1248. 
Brush  v.  Smith  (Cal.),  1935. 
Bryan  v.  Alder  (Wis.),  410. 
Buck  v.  Eureka   (Cal.),   1821. 
Buckingham  v.  Harris  (Colo.),  1333. 
Buckley  v.  Buckley   (Wash.),  500. 
Buckley,  Ex  parte  (Cal.),  1947. 
Buckman  v.  Hatch  (Cal.),  62. 
Buckmaster  v.  McElroy  (Neb.),  1615. 
Bucknall  v.  Story  (Cal.),  691,  692. 
Buckstaff  v.  Hicks  (Wis.),  390. 
Builder's     Supply     Depot     v.     O'Connor 

(Cal.),   953. 
Bull  v.  Ford   (Cal.),   1582. 
Bull  v.  Houghton  (Cal.),  1319. 
Bulwer  Con.   Min.   Co.   v.    Standard  Con. 

Min  Co.  (Cal.),  73,  1135. 
Bump  V.  Cooper  (Ore.),  1S85. 
Bunch    v.    Pierce    County    (Wash.),    277, 

1447. 
Burdette  v.  Corgan  (Kan.),  1826. 
Burditt  v.  Glasscock  (Tex.),  226. 
Burgess   v.    St.   Louis   Co.   R.   Co.    (Mo.), 

832. 
Burgett  v.  Allen  (Ark.),  SO. 
Burgher  v.  Wabash  R.  Co.  (Mo.),  1479. 
Burham    v.    San    Francisco    F.    M.    Co. 

(Cal.),   601. 
Burke  v.  Burke   (Iowa),  1883. 
Burke  v.  Maguire  (Cal.),  1030,  1156,  1931, 

1936. 
Burke  v.  Sharp  (Ark.),  201,  1701. 
Burkett  v.   Griffith   (Cal.),  35,   1548,   1549, 

1880. 


Burkhart  v.  Reed  (Idaho),  880. 

Burlington  Co.  v.  Dey  (Iowa),  1672. 

Burnet  v.  Glas   (Cal.),  946. 

Burnham  v.  Tillery  (Mo.),  107. 

Burns  v.  Hiatt  (Cal.),  1134. 

Burrage    v.    Bonanza    Gold    etc.    M.    Co. 

(Ore.),   8. 
Burris  v.  People's  Ditch  Co.'  (Cal.),  72. 
Burrus  v.  Cook  (Mo.),  65,  849. 
Burton,   In  re   (Cal.),   1063. 
Burtt  v.  Advertiser  Co.   (Mass.),  390. 
Bush  v.  Wood  (Cal.),  1869. 
Bushey  v.  Reynolds  (Ark.),  80. 
Butler  v.  Ash  worth   (Cal.),   246. 
Butler  v.  Carpenter  (Mo.),  275. 
Butler  v.  Collins   (Cal.),   1604. 
Butler  v.  Howes  (Cal.),  391. 
Butler  v.  Lee  (N.  Y.),  1883. 
Butterfield   v.    Mountain   I.    &   C.    S.    Co. 

(Utah),    1937. 
Butts  v.  Phelps  (Mo.),  31. 
Butts  v.  Privett  (Kan.),  1648. 
Butz  v.  Cavanaugh  (Mo.),  670. 
Byers  v.  Rodabaugh   (Iowa),  1135. 
Byrne  v.  Hudson  (Cal.),  730. 
Byrne  etc.  D.  G.  Co.  v.  Willis-Dunn  Co. 

(S.  Dak.),  1594. 

Cahill,  Estate  of  (Cal.),  433. 

Cahill  v.  Stone  &  Co.  (Cal.),  277,  1544. 

Cahill  v.  Superior  Court  (Cal.),  882. 

Caldwell  v.  Ryan  (Mo.),  89. 

California  Fig  Syrup  Co.  v.  Impi-oved  Fig 

Syrup  Co.   (Fed.),  1613. 
California    Q.    S.    M.    Co.    v.    Redington 

(Cal.),  1901. 
California  S.   &  L.  Soc.  v.  Harris   (Cal.), 

272. 
California     St.     Tel.     Co.     v.     Patterson 

(Nev.),  31. 
California  Title  Ins.   etc.  Co.  v.   Consoli- 
dated P.  C.  Co.  (Cal.),  1835. 
Callaghan,  Estate  of  (Cal.),  432. 
Callahan  v.  Broderick  (Cal.),  31. 
Calland  v.  Nichols  (Neb.),  1259. 
Canoway  v.  Agar  (Iowa),  1460. 
Cameron  v.  Ah     Quong     (Cal.),     34,     62, 

1135. 
Cameron  v.  Hodges  (U.  S.),  1S22. 
Campbell  v.. Adams  (Cal.),  235. 
Campbell  v.  Shiland  (Colo.),  12S7. 
Campbell  v.  Taylor  (Utah),  792. 
Camplin  v.  Eads  (Ky.),  31. 
Canaday  v.  Davis  (Kan.),  275. 
Canaday  v.    United   R.   Co.    of  St.   Louis 

(Mo.),   129,   175.   1492. 
Cape  Girardeau  etc.   R.   Co.  v.   St.   Louis 

etc.  R.  Co.  (Mo.),  270,  Ho5. 


1976 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Cape  v.  Plymouth  Congregational  Church 

(Wis.),  1157. 
Capital   Lumber   Co.    v.    Barth    (Mont), 

270. 
Capps  v.  Vasey  Bros.  (Okla.),  1603. 
Carey  v.  Philadelphia  etc.  Petroleum  Co. 

(Cal.),  1287. 
Carey  v.  Sheets  (Ind.),  349. 
Carlin  v.  Lifur  (Cal.),  1334. 
Carmichael  v.  Argard  (Wis.),  104. 
Carney  v.  Duniway  (Ore.),  1870. 
Carpenter  v.  Carpenter  (Kan.),  498. 
Carpenter  v.  Jones   (Cal.),  1046. 
Carpenter  v.  Sibley  (Cal.),  361,  675. 
Carpentier  v.  Brenham  (Cal.),  33. 
Carr  v.  Howell  (Cal.),  1763. 
Carroll     Implement     Co.     v.     Engelman 

(Iowa),  440. 
Carrothers  v.  Newton  Co.  (Iowa),  1671. 
Carscallen  v.  Coeur  d'Alene  &  St  J.  T. 

Co.  (Idaho),  30,  1543. 
Carson-Rand  Co.  v.  Stern  (Mo.),  273. 
Carstens  v.  City  of  Fond  du  Lac  (Wis.), 

1671. 
Carter  v.    Butte   Creek  G.   M.    &   P.   Co. 

(Cal.),  1935. 
Carter  v.  George  (Kan.),  759. 
Carter  v.  Koshland  (Ore.),  1695,  1696. 
Cartwright  v.  Savage  (Ore.),  735. 
Cary  v.  Curtis  (U.  S.),  1293. 
Cary-Lombard   v.    Thomas    (Tenn.),    273. 
Cascade  Ice  Co.  v.  Austin  Bluff  L.  &  W. 

Co.   (Colo.),  106. 
Case  v.  Beauregard  (U.  S.),  1593. 
Case  T.  M.  Co.' v.  Campbell  (Ore.),  1603. 
Casey  v.  Dorr  (Ark.),  144.  361. 
Casey  v.  Mason  (Okla.),  759,  760. 
Caspary  v.  Portland  (Ore.),  35. 
Cassel  v.  Western  Stage  Co.  (Iowa),  1649. 
Casserly  v.  Alameda  County   (Cal.),   644, 

646. 
Cassidy  v.  Cassidy   (Cal.),  499. 
Cassin  v.  Nicholson  (Cal.),  235,  1127. 
Castagnino  v.  Balletta  (Cal.),  952. 
Castoriano  v.  Dupe  (N.  T.),  1415. 
Castro    v.    Adams    (Cal.),    222,    777,    786, 

1867. 
Castro  v.  Barry  (Cal.),   794. 
Catlin  v.  Ware  (Mass.),  555. 
Cavender  v.  Waddingham  (Mo.),  331,  332. 
Cazort  etc.  Co.  v.  Dunbar  (Ark.),  36,  64, 

66. 
Cederberg  v.  Robison  (Cal.),  1742. 
Central  Oil  Co.  v.  Southern  Refining  Co. 

(Cal.),  1258,  1261. 
Chaff e  v.  Oliver  (Ark.),  33. 
Chamberlain  v.   Hedger   (S.   Dak.),   1827. 
Chambers  v.  Mittnacht  (S.  Dak.),  807. 


Champlin  Bros.  r.  Sperling  (Neb.),  245. 
Chandler  v.  Gloyd  (Mo.),  1933. 
Chandler  v.  Starling  (N.  Dak.),  882. 
Chapman  v.  City  of  Lincoln  (Neb.),  1669. 
Chapman  v.  Hogg  (Mo.),  274. 
Chapman  v.  Justice  Court  (Nev.),  862. 
Chapman  v.  Soberlein  (Cal.),  1811. 
Chapman    &    Dewey    L.    Co.    v.    Wilson 

(Ark.),  71,  226. 
Charles  Roome  P.  Co.   v.   Haas   (N.  Y.), 

272. 
Chase  v.   Evoy   (Cal.),   1396. 
Cheltenham     Fire    Brick     Co.     v.     Cook 

(Mo.),  1335. 
Cherokee  etc.  Min.  Co.  v.  Britton  (Kan.), 

1502. 
Chesapeake  etc.  Canal  Co.  v.  Knapp  (U. 

S.),  1293. 
Chesebrough  v.  City  and  County  of  San 

Francisco  (Cal.),  683. 
Chezum  v.  Claypool  (Wash.),  1447. 
Chiatovich  v.  Hanchett  (Fed.),  390. 
Chicago  etc.  R.  Co.  v.  Abilene  Townsite 

Co.  (Kan.),  1932. 
Chicago  etc.  R.  Co.  v.  Bay  Shore  L.  Co. 

(Mo.),  146,  1480. 
Chicago  etc.  R.   Co.  v.   Crisman   (Colo.), 

1528. 
Chicago  etc.  R.  Co.  V.  Dunn  (111.),  520. 
Cnicago  etc.  R.  Co.  v.  Groner  (Tex.),  106. 
Chicago    etc.     R.     Co.    v.    Hemmenway 

(Iowa),   271. 
Chicago  etc.  R.  Co.  v.  Kerr  (Neb.),  1934. 
Chicago  etc.   R.   Co.  v.   Mitchell   (Okla.), 

162,  1479. 
Chicago    etc.    R.    Co.    v.    Provolt    (Colo.), 

668. 
Chicago    etc.    R.    Co.    v.    Smith    (Ark.), 

1504. 
Chicago  &  A.   B.   Co.   v.   Fowler    (Kan.), 

246. 
Chicago,    K.    &    W.    R.    Co.    v.    Abbott 

(Kan.),  759. 
Chicago,    K.    &    W.    R.    Co.    v.    Harris 

(Kan.),  880. 
Chicago,  R.  I.  &  P.  Co.  v.  Smith  (Ark.), 

1864. 
Childers  v.  Mercury  P.   &  P.   Co.    (Cal.), 

392. 
Childers   v.    San   Jose   Mercury    etc.    Co 

(Cal.),  389. 
Childers  v.  San  Jose  M.  P.  P.  Co.   (Cal.) 

391. 
Childs  v.  Kansas  City  etc.  R.  Co.   (Mo.), 

1446. 
Childs  v.   Lanterman   (Cal.),   433. 
Chilstrom  v.  Eppinger  (Cal.),  1432 
Chin  Kern  You  v.  Ah  Joan  (Cal.),  200. 


TABLE  OF  CASES. 


1977 


[References  are  to  pages.] 


Chittenden  ▼.  Pratt  (Cal.),  1699. 
Choctaw  etc.  R.  Co.  v.  Burgess  (Okla.), 

66.  80,  245,  246,  1489. 
Choctaw    etc.    R.    Co.    v.    Jones    (Ark.), 

1460. 
Christian    Church    v.    Carpenter    (Iowa), 

1157. 
Christiansen     v.     Chicago     etc.     R.     Co. 

(Minn.),   1542. 
Christiansen  v.  Oldrich   (Mont.),  1774. 
Christy  v.   St.  Louis   (Mo.),  691. 
C.    H.    Smith    etc.    Co.    v.    Weatherford 

(Ark.),  1287,  1864. 
Church  v.  Campbell  (Wash.),  1431. 
Church  v.  People  (111.),  953. 
Church  v.  Stilwell  (Colo.),  1224. 
Churchill  v.   Baumann    (Cal.),   72. 
Churchill  v.  Gardner  (Eng.),  1397. 
Churchill  v.  Lauer  (Cal.),  246. 
Ciapusci  v.   Clark   (Cal.),   1118. 
Cigarmakers'    Protective   Union   v.    Con- 

haim   (Minn.),  1613. 
Cincinnati    M.    H.    Assn.     v.     Rosenthal 

(111.),  272. 
Cinkovitch    v.    Thistle    Coal    Co.    (Iowa), 

1460. 
Citizens'    Bank   v.    Los   Angeles   I.    &   S. 

Co.   (Cal.),  32. 
Citizens'     State     Bank    v.     Chattanooga 

State  Bank  (Okla.),  1649. 
Citizens'  State  Bank  v.  Council  Bluffs  F. 

Co.   (Iowa),  730. 
City    and   County   of   Denver   v.    Bottom 

(Colo.),   649. 
City   and   County   of   Denver   v.    Walker 

(Colo.),    129. 
City    and    County    of    San    Francisco    v. 

Burr   (Cal.),    236. 
City  of  Butte  v.   Mikowitz    (Mont.),   270, 

1134. 
City  of  Cape  Girardeau  (Mo.),  973. 
City  of  Farmington  v.  Farmington  Tele- 
phone Co.    (Mo.),  105,  106,   107,   661. 
City  of  Ft.  Scott  v.  Kansas  City  etc.  R. 

Co.  (Kan.),  849. 
City  of  Garnett  v.  Smith  (Kan.),  669. 
City   of   Janesville   v.    Carpenter    (Wis.), 

1223. 
City  of  Los  Angeles  v.  Melius  (Cal.),  176. 
City   of  Los   Angeles  v.    Waldron    (Cal.), 

176. 
City  of  Pueblo  v.  Dye  (Colo.),  668. 
City    of    Rawlins    v.    Jungquist    (Wyo.), 

175,    330. 
City  of  Sonora  v.  Curtin  (Cal.),  687. 
City  of  St.  Louis  v.  Brooks   (Mo.),   1934. 
City  of  St.  Louis  v.  Calhoun  (Mo.),  8. 


City  of  Superior  v.  Douglas  Co.   T.   Co. 

(Wis.),   245. 
Clafiin  v.  McDonough  (Mo.),  691. 
Clague  v.  Tristate  L.  Co.  (Neb.),  71. 
Clancy  v.  Kenworthy  (Iowa),  678. 
Clapp  v.   Dittman   (Fed.),   1593. 
Clapp  v.  Vatcher  (Cal.),  1906. 
Clardy  v.  Hudspeth  (Ark.),  1532. 
Clark  v.  Bennett  (Cal.),  1529. 
Clark  v.  Brown  (Cal.),  1417. 
Clark    v.    Chicago    etc.    R.    Co.    (Min.v), 

1543. 
Clark  v.  Clifford  (Wis.),  1263. 
Clark  County  v.  Brazee  (Wash.),  881. 
Clark  v.  Fitch   (N.  Y.),  404,  407. 
Clark  v.  Grambling  (Ark.),  246. 
Clark    v.    Hannibal    etc.    R.    Co.     (Mo.), 

1883. 
Clark  v.  Kansas  City  etc.   R.  Co.    (Mo.), 

8,  183,  1502. 
Clark  v.  Nordholt  (Cal.),  176. 
Clark     v.     Oregon     Short     Line     R.     Co. 

(Mont.),  105. 
Clark  v.  Sylvester  (Me.),  1293. 
Clark  v.  Transfer  Co.  (Mo.),  108. 
Clark  v.  Wick  (Ore.),  1287,  1398. 
Clarke  v.  Huber  (Cal.),  269. 
Clarke  v.  Mohr  (Cal.),  1935. 
Clarris-sey  v.  Metropolitan  Fire  Dept.  (N. 

Y.),  649. 
Clason  v.   Matko   (Ariz.),   793. 
Clausen  v.  Head  (Wis.),  616. 
Clayburg  v.  Agricultural  Ins.  Co.   (Cal.), 

1337,  1352. 
Cleary  v.  City  R.  Co.    (Cal.),   1504. 
Cleary  v.  Contracting  Co.   (Wash.),  1870. 
Clemens  v.  Clemens  (Wis.),  1790. 
Clemens  v.  Knox  (Mo.),  71. 
Clements  v.  Lampkin  (Ark.),  SO. 
Clements  v.  Y      ts   (Mo.),  129. 
Clifford  v.  Adams   (Cal.),  1934. 
Clifford   v.    Denver,    S.    P.    &    P.    R.    Co. 

(Colo.),  1457. 
Cline  v.  Langan  (Nev.),  893. 
Clinton  v.  Laning  (Mich.),  1615. 
Close  v.  Wheaton    (Kan.),   1773. 
Clough  v.  Holden  (Mo.),  1582. 
Cloverdale  v.  Smith   (Cal.),  748. 
Clowers  v.  Snowden  (Okla.),  145,  331. 
Coats  v.  Arthur  (S.  Dak.),  1690,  1699. 
Cobb  v.  Charter,   (Conn.),  1565. 
Cobb  v.  Lindell  etc.  R.  Co.  (Mo.),  175. 
Cobbey  v.  State  Journal  Co.  (Neb.),  62. 
Coffee  v.  Williams  (Cal.),  1288. 
Coffey  v.  Greenfield   (Cal.),  225. 
Coffin  v.  Knott  (Iowa),  271. 
Coffman  v.  Gates  (Mo.),  62. 
Coghill  v.  Marks  (Cal.),  1701. 


1978 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Cohen  v.  Brumagen  (U.  S.),  201. 

Cohn    v.    Central    Pacific    R.    Co.    (Cal.), 

1821. 
Cohn  v.  Lehman  (Mo.),  128. 
Cole  v.  Armour  (Mo.),  129. 
Cole  v.  Laird  (Iowa),  1248. 
Cole  v.   Swanston   (Cal.),   747. 
Coleman  v.  Bercher  (Ark.),  161. 
Coleman  v.  La  Franc  (Cal.),  1224. 
Coleman  v.  Roberts  (Mo.),  1864,  1865. 
Coles  v.  Soulsby  (Cal.),  70. 
Collins,  In  re  (Cal.),  1956,  1957. 
Collins  v.  Chantland  (Iowa),  1883. 
Collins  v.  Gray  (Cal.),  158,  1225. 
Collins  v.  O'Laverty  (Cal.),  176. 
Collins  v.  Trotter  (Mo.),  440. 
Colorado-Eastern    R.    Co.    v.    Union    Pa- 
cific R.  Co.  (Fed.),  1869. 
Colorado   Iron   Works  v.    Taylor    (Colo.), 

951. 
Colorado    Iron   Works   v.    Sierra   Grande 

Min.  Co.  (Colo.),  1809. 
Colorado   Springs   Co.    v.    Wight    (Colo.), 

1582. 
Colt  v.  Ives   (Conn.),  1699. 
Colter  v.  Lower  (Ind.),  349. 
Colton  v.  Onderdonk  (Cal.),  1030. 
Columbia  Brewery  Co.  v.  Forgey   (Mo.), 

1810,  1826. 
Columbia  etc.   R.    Co.   v.   Moss    (Wash.), 

1827. 
Columbia  National  Bank  v.  Western  I.  & 

S.  Co.  (Wash.),  329. 
Columbia    Sav.     Bank    v.     Los    Angeles 

County  (Cal.),  693. 
Columbine  v.  Chichester  (Phila.),  1773. 
Comer  v.  Taylor  (Mo.),  407. 
Commissioners  of  Highways  v.  Drainage 

Dist.  (111.),  1237. 
Commissioners    of    Sheridan    County    v. 

Donebrink  (Wyo.),  1262. 
Commonwealth  etc.  Co.  v.  Dokko  (Minn.), 

1293. 
Commonwealth  Mutual  F.  I.  Co.  v.  Hay- 
den  (Neb.),  272. 
Compton  v.  Missouri  Pacific  R.  Co.  (Mo.), 

128. 
Conant  v.  Conant  (Cal.),  498,  499. 
Conant  v.  Raymond  (Vt),  555. 
Concannon  v.  Smith  (Cal.),  274. 
Cone  v.  Ivinson  (Wyo.),  1603. 
Congregational  Church  Bid.   Soc.   v.   Os- 

born  (Cal.),  160,  708. 
Conine  v.  Olympia  L.  Co.   (Wash.),  1869. 
Connaway,  Ex  parte  (U.  S.),  882. 
Connecticut    L.    Ins.    Co.    v.    McCormick 

(Cal.),  332. 
Connor  v.  Wabash  R.  Co.   (Mo.),  147. 


Conrow  v.  Little  (N.  T.),  1583. 
Conroy  v.  Pittsburg  Times  (Pa.),  391. 
Considerant    v.    Brisbane    (N.    Y.),    200, 

1335. 
Consolidated   S.    &   W.    Co.   v.   Bumhara 

etc.  Co.   (Okla.),  106. 
Continental  Life  I.  Co.  v.  Rhoads  (U.  S.), 

1822. 
Continental  Ins.  Co.  v.  Board  of  Under- 
writers of  the  Pacific  (Fed.),  1553. 
Converse  v.  Scott  (Cal.),  1934. 
Conway  v.  John  (Colo.),  1699. 
Conway  v.  Wharton  (Minn.),  330. 
Cook  v.  Carpenter  (Pa.),  602. 
Cook  v.  Ceas  (Cal.),  1432. 
Cook  v.  Pendergast  (Cal.),  1821. 
Cook  v.  Webb  (Minn.),  822. 
Coonrod  v.  Studebaker  (Wash.),  1772. 
Cooper  v.  Cedar  Rapids  (Iowa),  1670. 
Cooper  v.  Chamberlin  (Cal.),  691. 
Cooper  v.  Ft.  Smith  &  W.  R.  Co.  (Okla.), 

271,  332. 
Cooper  v.  Pena  (Cal.),  1772. 
Copeland  v.  Seattle  (Wash.),  203. 
Coplew  v.  Durand  (Cal.),  1091. 
Corbell  v.  Childers   (Ore.),  1648. 
Corby  v.  Tracy  (Mo.),  1934. 
Corby  v.  Weddle   (Mo.),   71. 
Corcoran  v.    Chesapeake  etc.   C.   Co.    (U. 

S.),   201. 
Corcoran  v.  Desmond  (Cal.),  1935. 
Corcoran  v.  Doll  (Cal.),  1030. 
Corcoran  v.  Harran  (Wis.),  390. 
Corder  v.  Speake  (Ore.),  500. 
Corea  v.  Higuera  (Cal.),  30,  774,  1089. 
Cornett  v.  Smith   (Colo.),  1885. 
Cortelyou  v.  Imperial  L.  Co.  (Cal.),  1029. 
Cortelyou  v.  Jones   (Cal.),  1224. 
Costello  v.  Muheim  (Ariz.),  793. 
Cotner   v.    St.    Louis    etc.    R.    Co.    (Mo.), 

1524. 
Cotton  v.  Coit  (Tex.),  1157. 
Cottrell,  Ex  parte  (Cal.),  500,  893. 
Couch  v.  Kansas  City  (Mo.),  691. 
Coulson  v.  Wing  (Kan.),  245,  246. 
Coulter,   In  re    (Wash.),   1866. 
Coulter  v.   Union   Laundry   Co.    (Mont.), 

1460. 
County  Bank  v.  Goldtree  (Cal.),  730. 
County  Bank  v.  Jack  (Cal.),  1934. 
County       Commissioners       v.       Isenberg 

(Okla.),   162. 
County  of  Glenn  v.  Klemmer  (Cal.),  159, 

641,  647,  1871. 
County   of   Los   Angeles   v.    Hunter,    and 

City    of    Los    Angeles    v.    Buffington 

(Cal.),  637. 


TABLE  OF  CASES. 


1979 


[References  are  to  pages.] 


County  of  Saguache  v.   Decker   (Colo.), 

1848. 
County    of    San    Francisco    v.    Randall 

(Cal.),  650. 
County  of  Trinity  v.  County  of  Mendo- 
cino (Cal.),  633. 
Cousins  v.  Partridge  (Cal.),  32. 
Covington  v.  Fisher  (Okla.),  145. 
Cowan  v.  Cowan   (Colo.),  497. 
Cox  v.  American  Ins.  Co.  (Mo.),  1357. 
Cox  v.  Bishop  (Mo.),  127. 
Cox  v.  McLaughlin  (Cal.),  1287. 
cox  r.  Western  Pac.  R.  Co.  (Cal.),  1287. 
Coye  v.  Palmer  (Cal.),  183. 
Coyne  v.  Baker  (Cal.),  1274. 
Cragg  v.   Los  Angeles   Trust  Co.    (Cal.), 

1457,   1491. 
Craig  v.   Hesperia  L.   &  W.   Co.    (Cal.), 

600. 
Craig  v.  Palo  Alto  Stock  Farm   (Idaho), 

1396,  1398. 
Crain  v.  Petrie  (N.  Y.),  1549. 
Crall    v.     Directors    of    Poso    Irr.    Dist. 

(Cal.),  1231,  1235. 
Cramer  v.  Barmon  (Mo.),  1883. 
Cramer  v.  Oppenstein    (Colo.),   682. 
Crane  v.   Cummings   (Cal.),  1935. 
Crane  v.  Patton  (Ark.),  1118. 
Crary  v.  Goodman   (N.  Y.),  33. 
Crashley  v.  Press  Pub.  Co.  (N.  Y.),  392. 
Crawford     v.     Bonners     Ferry     L.     Co. 

(Idaho),  1450,  1545. 
Crawford  v.  Neal  (Cal.),  432,  433. 
Crenshaw  v.  Looker  (Mo.),  1248. 
Crescent  City  etc.  Co.  v.  Butchers'  Union 

S.  H.  etc.   Co.    (U.  S.),  361. 
Crescent   Feather   Co.   v.   United   Uphol- 
sterers' Union  (Cal.),  1555. 
Cribbs  v.  Benedict  (Ark.),  1237. 
Cribbs  v.  Walker  (Ark.),  1936. 
Crigler  v.  Duncan  (Mo.),  1293. 
Crimmins  v.  Morrisey  (Kan.),  328. 
Crooks,  Estate  of  (Cal.),  1935. 
Cross  v.  Gould  (Mo.),  1447,  1836. 
Cross   v.    Sacramento    Sav.    Bank    (Cal.), 

1319. 
Crouch  v.  Crouch  (Iowa),  66. 
Crow   v.    San    Joaquin    etc.    C.    &    I.    Co. 

(Cal.),  1742. 
Cumberland     Permanent     Committee     of 

Missions    etc.    v.     Pacific    Synod    of 

Presbyterian     Church,      etc.      (Cal.), 

1154,   1668. 
Cummings  v.  Helena  etc.  R.  Co.  (Mont.), 

Irj44. 
Cummings    v.    Roeth    (Cal.),    1767,    1771, 

1774,  1933,  1934. 
■Cunningham  V.  Barr  (Kan.),  951. 


Cunningham  v.  Klamath  L.  R.  Co.  (Ore.), 

273. 
Cunningham  v.  Lakin  (Wash.),  1936. 
Curry  v.  Janicke  (Kan.),  728. 
Curry  v.  Lackey  (Mo.),  35,  62. 
Curtis  v.  Parks  (Cal.),  691. 
Curtis  v.  Richards  (Cal.),  31,  1937. 
Curtis,     State    ex    rel.,    v.    McCullough 

(Nev.),  1827. 
Curtis,  The  (Fed.),  843. 
Curtiss  v.  Bell  (Mo.),  1447. 
Cushman  v.  Carbondale  Co.  (Iowa),  1460. 
Cushman   v.    Thayer   Mfg.    Co.    (N.    Y.), 

1773. 
Cutler  v.  Fitzgibbons  (Cal.),  773,  793. 
Cutler  etc.   Paint  Color  Co.   v.  Hinman 

(N.  M.),  67. 
Cutting  F.  P.  Co.  v.  Canty  (Cal.),  1743. 

Dabman  v.  White  (Cal.),  1835. 

Daggett  v.  Gray  (Cal.),  1603. 

Daley  v.  Russ  (Cal.),  330. 

Dallas  etc.  Railway  v.  Hurley  (Tex.),  231. 

Dalpine  v.  Lume  (Mo.),  1324. 

Dalton  v.  Bowker  (Nev.),  1090. 

Daly  v.  Bernstein  (N.  Mex.),  1105. 

Daly  v.  Ruddell  (Cal.),  1935. 

Damon,  In  re  (Fed.),  1900. 

Daniel  v.  Mitchell  (Fed.),  1790. 

Darlington  L.  Co.  v.  Missouri  Pacific  R. 

Co.  (Mo.),  1650. 
Darrah    v.    Steamboat    Lightfoot    (Mo.), 

1884. 
Dauphiny  v.  Buhne  (Cal.),  376,  389. 
Davanay  v.  Eggenhoff  (Cal.),  1398. 
Davidson  Bros.  Co.  v.  Smith  (Iowa),  1248. 
Davidson  v.  Biggs  (Iowa),  66. 
Davidson  v.  Davidson  (N.  H.),  1791. 
Davidson  v.  Ellis  (Cal.),  772. 
Davidson  v.  Munsey  (Utah),  1866. 
Davidson  v.  Little,  1774. 
Davidson  v.  Tramway  Co.  (Colo.),  1529. 
Davies  v.  McKnight  (Pa.),  1616. 
Davis  v.  Akers  (Mo.),  1118. 
Davis  v.  Bilsland  (U.  S.),  1417. 
Davis  v.  Browning  (Cal.),  1030. 
Davis  v.  Butler  (Cal.),  1570,  1580. 
Davis  v.  Caruthers  (Okla.),  245,  881,  882. 
Davis  v.  Davis  (Cal.),  270. 
Davis  v.  Davis  (Ore.),  275. 
Davis  v.  Flagstaff  (Utah),  1713. 
Davis  v.  Goodman  (Ark.),  108. 
Davis  v.  Hinchcliffe  (Wash.),  1936. 
Davis  v.  Hurgren  (Cal.),  1900. 
Davis  v.  Jenkins  (Kan.),  1581. 
Davis  v.  Johnson  (Colx),  106,  227. 
Davis  v.  Randolph   (Mo.),   1649. 
Davis  v.  Robinson  (Cal.),  1622. 


1980 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Davis  v.  Schwelkert  (Cal.),  760. 
Davis  v.  Seattle  (Wash.),  246,  668. 
Davis  v.  Van  De  Mark  (Kan.),  1649. 
Davisson  v.  East  Whittier  L.  &  W.  Co. 

(Cal.),  313,  314,  1003. 
Day  v.  Woodworth  (U.  S.),  403. 
De  Amado  v.  Freidman  (Ariz.),  1503. 
Dear  v.  Varnum  (Cal.),  691,  692. 
Dearing  v.  Ford  (Miss.),  1649. 
De  Baker  v.   Carillo   (Cal.),  691. 
De  Bow  v.  Woolenberg  (Ore.),  1023. 
De  Camp  L.  Co.  v.  Tolhurst  (Cal.),  953. 
De  Cazara  v.  Orena  (Cal.),  734. 
Deeters  v.  Clarke  (S.  Dak.),  691. 
De  Fremery  v.  Austin  (Cal.),  692. 
De  La  Beckwith  v.  Superior  Court  (Cal.), 

882. 
De  Haley  v.  Haley  (Cal.),  499. 
Delaney  v.  Great  Bend  I.  Co.  (Kan.),  34, 

141,  176. 
Delaplain  v.  Turnley  (Wis.),  1333. 
De  La  Vega  v.  League  (Tex.),  822. 
Delaware  R.  Q.  Co.  v.  Bethlehem  etc.  R. 

Co.   (Penn.),  272. 
De  Lissa  v.  Fuller  C.  &  N.  Co.   (Kan.), 

145. 
Del  Vecchio  v.   Savelli   (Cal.),  1581,  1583. 
Dempster  v.    Oregon   Short  Line   R.    Co. 

(Mont.),   108. 
Dennehy  v.  McNulta   (Fed.),   691. 
Depuy  v.  Shear  (Cal.),  1S69. 
De  Roberts  v.  Town  of  Cross  (Okla.),  657. 
Delz  v.  Winfree  (Tex.),  1551. 
Dennick  v.  Railroad  Co.  (U.  S.),  32. 
Dennis  v.  Kohn  (Cal.),  225,  1701. 
Dennis  v.  Superior  Court  (Cal.),  616. 
DeUprey  v.  DeUprey  (Cal.),  822. 
Dewitt  v.  Buchanan  (N.  Y.),  1811. 
DeWitt  v.  Hays   (Cal.),   8. 
DeWitt  v.  Porter   (Cal.),   1278. 
Dent  v.  Superior  Court  (Cal.),  130. 
Denton  v.  Woods  (La.),  822. 
Denver  etc.  R.  Co.  v.  Cloud  (Colo.),  1492. 
Denver  etc.    R.    Co.    v.    Buffehr    (Colo.), 

1528,  15z9. 
Denver  Fire     Ins.      Co.     v.      McClelland 

(Colo.),  1355. 
Denver  etc.  Rapid  Transit  Co.  v.  Dwyer 

(Colo.),  1528. 
Depriest  v.  McKinstry  (Neb.),  1649. 
Depuy  v.  Shear  (Cal.),  1869. 
Derby  v.  Modesto  (Cal.),  1811. 
Dewey  v.  Parcells  (Cal.),  1323. 
Dewing  v.  Perdicaries  (U.  S.),  601. 
Dexter  v.  Witte  (Wis.),  105. 
Dexter,     Horton     &     Co.     v.     Sparkman 

(Wash.),  951. 


Diamond  Glue  Co.  v.  TJ.  S.  Glue  Co.  (U. 

S.),  273. 
Dias  v.  Phillips  (Cal.),  433. 
Dick  v.  Wilson  (Ore.),  650. 
Dillon  v.  Barnard  (U.  S.),  63. 
Dillon  v.  Great  Northern  R.  Co.  (Mont), 

7,  201. 
Dimpfel  v.  Ohio  etc.  R.  Co.   (U.  S.),  274. 
Dimuria  v.  Seattle  Transfer  Co.  (Wash.), 

1870. 
Dinehart  v.    Town   of  Lafayette    (Wis.), 

1671. 
Dingley  v.  Bank  of  Ventura  (Cal.),  730. 
Dinsmore  &  Co.  v.  Stimbert  (Neb.),  71. 
Dittemore  v.   Cable  Milling  Co.    (Idaho),. 

30,  66,  72. 
Dodd  v.  Focht  (Iowa),  404,  405. 
Dodge  v.  Chambers  (Colo.),  227,  270. 
Dodge  v.  Hamburg-Bremen  Fire  Ins.  Co. 

(Kan.),  1356. 
Dodge  v.  Meyer  (Cal.),  1319,  1479,  1604. 
Dodge  v.  Ridenour    (Cal.),    122,    123,    126, 

1832. 
Doherty  v.  Des  Moines  C.  R.  Co.  (Iowa),. 

1546. 
Dolbeer's  Estate,  In  re  (Cal.),  1046. 
Donegan  v.  Houston  (Cal.),  1265. 
Donnelly  v.  Harris  (111.),  390. 
Donnelly  v.  Tregaskis   (Cal.),   785. 
Donnely  v.  Decker  (Wis.),  1237. 
Donovan  v.  Boeck  (Mo.),  63,  1884. 
Donovan  v.  McDevitt  (Mont.),  64. 
Doolittle,  Estate  of  (Cal.),  1041. 
Doty  v.  Miller  (N.  Y.),  1333. 
Doty  v.  Quincy  etc.  R.  Co.  (Mo.),  1564. 
Douglas  v.  Kansas  City  (Mo.),  691. 
Dow  v.  Ross  (Cal.),  1900. 
Downey    v.    Colorado    Fuel    &    Iron    Co. 

(Colo.),  31,  64. 
Downing  v.  Still  (Mo.),  1836. 
Doyle  v.  Burns  (Iowa),  277. 
Doyle  v.  Callaghan  (Cal.),  1603. 
Doyle  v.  Doyle  (Kan.),  1430. 
Drach  v.  Isola  (Colo.),  1238. 
Drainage  Dist.  No.  1  v.  Costello  (Wash.), 

1S66. 
Drake  v.  Pueblo  National  Bank   (Colo.), 

1605. 
Dralle  v.  Town  of  Reedsburg  (Wis.),  668, 

669. 
Draper  v.  Baker  (Wis.),  368. 
Driesbach  v.  Wilkesbarre  Nat.  Bank  (U. 

S.),  1294. 
Drilling  v.  Armstrong  (Ark.),  63. 
Drouilhat  v.  Rottner  (Ore.),  1937. 
Dryden  v.   Pelton-Armstrong  Co.   (Ore.)» 

1870. 


TABLE  OF  CASES. 


1981 


[References  are  to  pages.J 


Du  Bols  v.  First  National  Bank  (Colo.), 

65,  1582. 
Duckworth  v.  Watsonville  W.  &  L.  Co. 

(Cal.),  1224. 
Dudley  v.  Duval  (Wash.),  130. 
Dudley  v.  Shaw  (Kan.),  1133. 
Duff  v.  Willamette  Steel  Works   (Ore.), 

1460. 
Duffy  v.  Greenebaum  (Cal.),  1935. 
Duffy  v.  Wilson  (Colo.),  334. 
Duggan  v.  Cole  (Tex.),  1936. 
Duke  v.  Griffith  (Utah),  1135. 
Dulin  v.  Knechel  (Tex.),  1118. 
Duncan  v.  Gibson  (Utah),  1105. 
Duncan  v.  Hawn  (Cal.),  1417. 
Duncan  v.  Ramish  (Cal.),  670. 
Duncanson  v.  Walton  (Cal.),  1105. 
Dunham  v.  Insurance  Co.   (Wash.),  1357. 
Dunlap  v.  Plummer  (Cal.),  333,  1788. 
Dunn  v.  Dunn  (Cal.),  440. 
Durell  v.  Abbott  (Wye),  792. 
Durkee  v.   Central  Pacific  R.  Co.   (Cal.), 

1543. 
Dusy  v.  Helm  (Cal.),  342,  345,  361,  1622. 
Dutcher  v.  Dutcher  (Wis.),  499. 
Duval  v.   Advance  Thresher  Co.    (Neb.), 

176. 
Dwelling  House  I.  Co.  v.  Johnson  (Kan.), 

330. 
Dyas  v.  Southern  Pacific  Co.  (Cal.),  1504. 
Dyer  v.  Jacoway  (Ark.),  80. 

Eachus  v.  Los  Angeles  (Cal.),  670. 

Eagle  v.  Beard  (Ark.),  246. 

East,  In  re  (Iowa),  547. 

East  Tennessee  etc.  Co.,  ▼.  Kane  (Ga.), 

1863,  1864. 
Eaton  v.  Trowbridge  (Mich.),  1582. 
Ebell  v.  Bursinger  (Tex.),  1157. 
Eberle  v.  King  (Okla.),  882. 
Eccless  v.  Hill  (Tex.),  225. 
Ecton  v.  Kansas  City  etc.  R.  Co.   (Mo.), 

1934. 
Eddy  v.  American  Amusement  Co.  (Cal.), 

104. 
Eddy  v.  Lafayette  (Fed.),  1811. 
Edelman  v.  McDonell  (Cal.),  1852. 
Edwards  v.  Bartlett  (Mo.),  440. 
Edwards  v.  Brown  (Mo.),  1615. 
Edwards  v.  Burris  (Cal.),  1548. 
Edwards  v.  Hartshorn  (Kan.),  32. 
Edwards  v.  Perkins  (Ore.),  760. 
Edwards   v.    San    Jose    P.    &    P.    Society 

(Cal.),  390. 
Edwards  v.  Sonoma  Valley  Bank   (Cal.), 

600,  601. 
Egan  v.  Egan  (Cal.),  500. 
Egan  v.  Murray  (Iowa),  406. 


Eichoff  Y.  Tldball  (Tex.),  1699. 

Eingartner  v.   Illinois   Steel   Co.    (Wis.), 
336. 

Eisenhauer  v.  Quinn  (Mont.),  270. 

Elder  v.  Kutner  (Cal.),  1699. 

Eldreidge  v.  Hoefer  (Ore.),  735. 

Elizalde  v.  Elizalde  (Cal.),  434,  1936. 

Ell  v.  Northern  Pacific  R.  Co.  (N.  Dak.), 
1460. 

Ellinger  v.  Thomas  (Kan.),  8. 

Elliott,  In  re  (Kan.),  1866. 

Elliott  v.  Delaney  (Mo.),  1136. 

Elliott  v.  Superior  Court  (Cal.),  1935. 

Ellis,  Ex  parte  (Tex.),  1865. 

Ellis  v.  Massachusetts  Mut.  Life  Ins.  Co. 
(Cal),  275. 

Ellis  v.  White  (Iowa),  497. 

Ellis  v.  Witmer  (Cal.),  849. 

Ellissen  v.  Halleck  (Cal.),  1030. 

Ellsworth  v.  Knowles  (Cal.),  1256,  1906. 

Elmendorf  v.  Golden  (Wash.),  1869. 

Elmergreen  v.  Weimer  (Wis.),  32,  63,  231. 

Eltzroth  v.  Ryan  (Cal.),  1031. 

Emeric  v.  Alvarado  (Cal.),  432. 

Emerson  v.  Botkin  (Okla.),  176. 

Emerson  Co.  v.  Knapp  (Wis.),  1380. 

Emerson  v.  Huss  (Wis.),  1866. 

Emerson  v.  Nash  (Wis.),  64,  408. 

Emma,  Ex  parte  (Fed.),  555. 

Engelken  v.  Hilger  (Iowa),  1616. 

Ensworth  v.  Barton  (Mo.),  105. 

Epperson  v.  Epperson  (Mo.),  275. 

Equitable  S.  &  L.  Assn.  v.  Hewitt  (Ore.), 
951. 

Erskine  v.  Wilson  (Tex.),  730. 

Ertz  v.  Produce  Exchange  (Minn.),  1550. 

Ervin  v.  Record  Pub.  Co.  (Cal.),  374,  387, 

391. 
Esbensen  v.  Hover  (Colo.),  330,  139S. 
Espinosa  v.  Gregory  (Cal.),  6S. 
Estate  of  Cook  (Cal.),  35. 
Estate  of  Rose  (Cal.),  1S36. 
Estate  of  Smith  (Cal.),  1836. 
Evans  Estate,  In  re  (Cal.).  546. 
Evans  v.  Hughes  County  (S.  Dak.),  691. 
Evans  v.  Wabash  R.  Co.  (Mo.),  268,  1504, 

1543. 
Everett  v.  Saltus  (N.  Y.),  1417. 
Everroad  v.  Gabbert  (Ind.),  l^l4. 
Eversdon  v.  Mayhew  (Cal.),   1106. 
Evert  v.  Tower  (Wash.),  1582. 
Ewing  v.  Vernon   County   (Mo.),   61,   145, 

1864,  1865. 
Ewing  v.  Webster  City  (Iowa),  1670. 

Fairbanks  v.  Baskett  (Mo.),  1248. 
Fairchild  v.  Amsbaugh   (Cal.),  1398. 


1982 


TABLE  OF  CASES. 
[References  are  to  pages.] 


Falbrook  Irr.  Diat.  v.  Bradley  (U.  S.), 
1237. 

Palconio  v.  Larsen   (Ore.),  1417. 

Falkner  v.  Hunt  (Cal.),  692. 

Fargo  v.  Ames   (Iowa),  1671. 

Fargusson  v.  Winslow  (Minn.),  1565. 

Farmer  v.  Behmer  (Cal.),  245,  747,  748. 

Farmers  etc.  Bank  v.  Dering  (U.  S.), 
1294. 

Farmers'  etc.  Canal  Co.  v.  Henderson 
(Colo.),  601. 

Farmers'  High  L.  C.  &  R.  Co.  v.  South- 
worth  (Colo.),  1224. 

Farmers'  Indep.  D.  Co.  v.  Agricultural 
D.  Co.  (Colo.),  1224. 

Farmers  etc.  Ins.  Co.  v.  Harrah  (Ind.), 
272. 

Farmers'  Nat.  Gold  Bank  v.  Wilson 
(Cal.),  1699. 

Farra  v.  Quigly  (Mo.),  8. 

Farnham  V.  California  etc.  Trust  Co. 
(Cal.),  953. 

Farrant  v.  Railway  Co.   (Minn.),  64. 

Farrell  v.  Board  of  Police  Commission- 
ers (Cal.),  46,  665. 

Farrell  v.  Drees  ("Wis.),  1615. 

Farrell  v.  Palmer  (Cal.),  274. 

Farris  v.  Merritt  (Cal.),  235. 

Farwell  Co.  v.  Wolf  (Wis.),  184. 

Faulkner  v.  Hendy  (Cal.),  1899. 

Fearon  v.  Mullins  (Mont.),  1542. 

Feedler  v.  Schroeder  (Mo.),  1820. 

mellows  v.  Fellows  (N.  Y.),  246. 

Fellows  v.  Niver  (N.  Y.),  433. 

Fenelon  v.  Butts  (Wis.),  390. 

Ferguson  v.  Jones  (Ore.),  546. 

Ferguson  v.  Wheeler  (Iowa),  1866. 

Ferguson  Implement  Company  v.  Par- 
mer (Mo.),  1248. 

Ferrandini  v.  Bankers  Life  Assn. 
(Wash.),  37,  1356. 

Ferry  v.  King  Co.   (Wash.),  1852,  1853. 

Ferry-Leary  L.  Co.  v.  Holt  &  Jeffery 
(Wash.),  974,  1670. 

Fichett  v.  Henley  (Nev.),  S62. 

Fidelity  Savings  Bank  v.  Reeder  (Iowa), 
1293. 

Field  v.  Austin  (Cal.),  333. 

Field  v.  Gantier  (Tex.),  225. 

Fifield  v.  Spring  Valley  W.  Works  (Cal.), 
1224. 

Fifth  National  Bank  v.  Edholm  (Neb.), 
1377. 

Fink  v.  Busch   (Neb.),  368. 

Fink  v.  Garman  (Pa.),  1615. 

Finlen  v.  Heinze  (Mont.),  1774. 

Finley  v.  City  of  Tucson   (Ariz.),  1885. 

Finnerty  v.  Fritz  (Colo.),  1333. 


Finney  v.   State  to  use,  etc.   (Mo.),  1884. 
Fireman's  Fund  Ins.  Co.  v.  Oregon  R.  & 

N.  Co.  (Ore.),  8,  183,  184. 
First  National  Bank  of  Pawnee  City  v. 

Avery  Planter  Co.   (Neb.),  849. 
First   National   Bank   v.   Bew»    (Idaho), 

1394. 
First   National   Bank  v.   Bowers    (Cal.), 

1383,  1390,  1393. 
First  National  Bank  v.   Eastman   (Cal.), 

1594. 
First  National  Bank  v.  Franklin  (Kan.), 

681. 
First   National    Bank   v.    Hamor    (Fed.). 

246. 
First  National  Bank  v.  Hastings  (Colo.), 

1699. 
First  National  Bank  v.  How  (Mont.),  107. 
First  National  Bank  v.  Marietta  &  C.  R. 

Co.  (Ohio),  183. 
First  National  Bank  v.   Martin    (Idaho), 

72. 
First  National  Bank  v.  Watt  (Idaho),  72. 
Fischback    v.     Garrison     N.     &     E.     Co. 

(Colo.),  129. 
Fisher  v.  Fisher  (Mo. ),  1836. 
Fisher  v.  Frank  (Cal.),  1374. 
Fisher  v.  Golladay   (Mo.),   1540. 
Fisher  v.  Hopkins  (Wyo.),  1031. 
Fisher  v.  Kelly  (Ore.),  650. 
Fisher  v.  McDaniel  (Wyo.),  1865. 
Fisher  v.  Pyne  (Eng.),  1287. 
Fisk  v.  Henarie   (Ore.),  1333. 
Fiske  v.   Tacoma  Smelting  Co.    (Wash.), 

1870. 
Fitch  v.  Martin  (Neb.),  127,  330,  1030. 
Fitzell  v.  Leaky  (Cal.),  1179. 
Fitzgerald  v.  Donoher  (Neb.),  1615. 
Fitzgerald    v.    Town    of    Sharon    (Iowa), 

274. 
Fitzpatrick   v.    Simonson   Bros.   Min.    Co. 

(Minn.),  1063. 
Flanagan   Mill.   Co.   v.   City  of  St.   Louis 

(Mo.),  1864. 
Flanders  v.  Aumack  (Ore.),  735. 
Flandreau  v.  Downey  (Cal.),  270. 
Fleishchauer  v.   Fabens   (Cal.),  351. 
Fleming  v.  Fleming  (Cal.),  496. 
Fleming  v.  Shenandoah  (Iowa),  201. 
Fletcher  v.  Cummings  (Neb.),  1599. 
Flint  v.  Atlas  M.  I.  Co.  (Iowa),  106. 
Flint  v.  Gauer  (Iowa),  1616. 
Flood  v.  Templeton  (Cal.),  1774. 
Florence  etc.  R.  Co.  v.  First  Nat.  Bank 

(Colo.),  330. 
Florence   ete.  R.   C«.   t.   Jeasen    (Colo.), 

36. 
Flori  v.  St.  Louis  (Mo.)    520. 


TABLE  OF  CASES. 


198  :J 


[References  are  to  pages.] 


Flower  v.  Witkovsky  (Mich.),  1615. 
Flowers,  Ex  parte  (Okla.),  1947,  1948. 
Plynn  v.  Flynn  (Mass.),  974. 
Fogarty  v.   Junction  City  Pressed  Brick 

Co.  (Kan.),  1668. 
Fogg  v.    Boston   &  L.   R.   Corp.    (Mass.), 

389. 
Foley  v.  California  H.   Co.    (Cal.),  433. 
Foley  v.  Foley  (Cal.),  500. 
Forbes  v.  Carl  (Iowa),  1670. 
Ford  v.  Ames  (N.  Y.),  1613. 
Ford  v.  Fidelity  etc.  Co.  (Mo.),  142. 
Ford  v.  Freeman    (Wis.),   1581. 
Ford  v.  Gregson  (Mont.),   1261. 
Ford  &  Sanborn  v.   Braslan  Seed  Grow- 
ers' Co.   (Cal.),  1936. 
Fordyce  v.  Hathorn  (Mo.),  68. 
Fordyce  v.  Key  (Ark.),  1864. 
Foresters   of  America  v.    Hollis    (Kan.), 

1356. 
Forney  v.  Forney  (Cal.),  497,  498. 
Forrester  v.  Mining  Co.   (Mont.),  600. 
Forster  v.  Flack  (Wis.),  1791. 
Forster  v.  Scott  (N.  Y.),  1223. 
Ft.    Scott   etc.   R.    Co.   v.    Tubbs    (Kan.), 

1527. 
Ft.  Scott,  W.  &  W.  R.  Co.  v.  Fox  (Kan.), 

759. 
Ft.    Madison   Lumber    Co.     v.     Batavian 

Bank   (Iowa),   1699. 
Ft.     Worth     etc.     R.     Co.     v.     McAnulty 

(Tex.),   730. 
Foster  v.  Board  of  County  Commission- 
ers  (Kan.),  246. 
Fowles  v.  Bentley  (Mo.),  8. 
Fox    v.    Hale    &    Norcross    S.    Min.    Co. 

(Cal.),  1S99. 
Fox  v.  Mackay  (Cal.),  595. 
Fox  v.  Monahan   (Cal.),   31,   1292. 
Franey  v.  Warner  (Wis.),  64. 
Franke  v.  Mann  (Wis.),  1157. 
Franklin  v.  Butcher  (Mo.),   1540. 
Franklin  v.  Franklin   (Mont.),   499. 
Franklin  v.  Merida  (Cal.),  1901. 
Franklin  v.  Schermerhorn  (N.  Y.),  1615. 
Frates  v.  Sears  (Cal.),  735. 
Freasier  v.  Harrison   (Mo.),  105. 
Fredericks  v.  Tracy  (Cal.),  1649. 
Freeborn  v.  Glazier  (Cal.),  1278. 
Freeman  v.  Seitz    (Cal.),   91. 
Freeman  v.  St.  Louis  etc.  R.   Co.    (Mo.), 

330. 
Freese  v.  Tripp  (111.),  1616. 
French   v.    Deane    (Colo.),    394,    395,    401, 

403,   406. 
French  v.  McCarthy    (Cal.),    1934. 
French  v.  Senate  (Cal.),  63. 
French  Bank  case  (Cal.),  1713. 


French  etc.  Co.  v.  Hicks  (Tex.),  19. 

Frepons  v.  Grostein  (Idaho),  79. 

Friend  &  T.  L.  Co.  v.  Miller  (Cal.),  1742. 

Friendly  v.  Lee  (Ore.),  1884. 

Frisbie  v.  Fogarty  (Cal.),  1901. 

Frisch  v.  Caler  (Cal.),  1398. 

Frolich  v.  McKiernan  (Cal.),  391,  392. 

Frost,  In  re  (Fed.),   1865,  1866. 

Fry  v.  Street  (Ark.),  246. 

Fuller,   Ex  parte   (Ark.),   881. 

Fuller  v.  Stebbins    (Iowa),    1780. 

Ful wider    v.    Trenton    G.    L.    &    P.    Co. 

(Mo.),  66,  68. 
Fuson  v.  Connecticut  I.  Co.   (Iowa),  1671. 

Gaffney  v.  Megrath    (Wash.),    1583. 

Gage  v.  Atwater  (Cal.),   1827. 

Gage   v.    Gunther    (Cal.),    770,    784,    1872, 
1930. 

Gage  v.  People  (111.),  953. 

Gaines  &  Co.  v.  Johnson  (Ky,),  1542. 

Gaines  &  Co.  v.  Sroufe  (Fed.),  30,  1613. 

Galbraith  v.  Williams  (Ky.),  1822. 

Gale  v.  Bradbury   (Cal.),   1S83. 

Galigher  v.  Jones   (U.   S.),   1331. 

Gallagher  v.   McGraw    (Cal.),   1030. 

Galland  v.  Galland  (Cal.),  893. 

Gallegos  v.  Sandoval  (N.  Mex.),  127. 

Galliher  v.  Cad  well  (U.  S.),  276. 

Galveston   etc.    R.    Co.   v.   Henry    (Tex.) 
70. 

Galveston  etc.  R.  Co.  v.  Leonard  (Tex.) 
1502. 

Galvin  v.  O'Gorman  (Mont.),  129,  144. 

Gamble     v.     First     Judicial    Dist.    Court 

(Nev.),  1822. 
Gamblin  v.  Gamblin   (Tex.),   498. 
Gannon  v.  Aclede  G.  Co.    (Mo.),   31. 
Gans  v.   Beasley   (N.   Dak.),  1397,   1691. 
Garberino  v.  Roberts   (Cal.),  1105. 
Gardner  v.  Brown   (Nev.),   1649. 
Gardner  v.  King  (Kan.),  1648. 
Gardner    v.    Metropolitan     etc.     R.     Co. 

(Mo.),   1543,   1545. 
Gardner  v.  Porter  (Wash.),   1869,   1870. 
Garety  v.   O'Sheehan    (Cal.),  1141. 
Garr  v.  Davidson  (Utah),  1063. 
Garr,  Scott  &  Co.  v.  Black  (Mo.),  330. 
Garrard  v.   Hitsman    (N.  J.),   1850. 
Garrison   v.    iroung    (Mo.),    519. 
Garvey  v.  Garvey  (Wash.),  794. 
Garvie  \.  Greene  (S.   Dak.),   1812. 
Garwood  v.  Hastings   (Cal.),  30. 
Gassen  v.  Bower  (Cal.),  67. 
Gaston  v.  Gaston  (Cal.),  515. 
Gaston  v.  Wright  (Tex.),  69. 
Gates  v.  Avery  (Wis.),   127. 
Gates  v.  Paul   (Wis.),  104,   108. 


1984 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Gay  v.   Havermale    (Wash.),    276. 

Gay  v.  Winter  (Cal.),  747. 

Geary,  In  re  (Fed.),  1866. 

Gentry  v.  Singleton  (Fed.),  246. 

George  R.  Barse  L.  S.  Com.  Co.  v.  Range 

Valley  Cattle  Co.  (Utah),  600. 
George  v.  Northern  Pacific  T.  Co.  (Cal.), 

747. 
Gerber  v.   Gerber   (Wash.),   107. 
Germain  Fruit  Co.  v.  Armsby  Co.  (Cal.), 

1248. 
German  Sav.  Ins.  v.  De  La  Vergne  R.  M. 

Co.    (Fed.),   1773. 
Gessner  v.   Palmateer   (Cal.),   1105. 
Geurkink  v.  Petaluma  (Cal.),  670. 
G.    Heileman    Brewing    Co.    v.    Peimeisl 

(Minn.),   273. 
Gilbert  v.  Hall  (Ind.),  1811. 
Gilbert  v.  Shaver  (Ark.),  873,  882. 
Gilbert-Arnold  L.  Co.  v.  O'Hare   (Wis.), 

1826. 
Gill    v.    Manhattan    L.    Ins.    Co.    (Ariz.), 

1582. 
Gillen  v.  Peters  (Kan.),  1322,  1323. 
Gillespie  v.  Thomas   (Kan.),   1811. 
Gillett  v.   Burlington  I.   Co.    (Kan.),   330. 
Gillon  v.  Northern  etc.  Co.   (Cal.),  330. 
Gish    v.    Ferrea    (Cal.),    793,    1765,    1771, 

1830. 
Gizler  v.  Witzel  (111.),  368. 
Glascock  v.  Ashman  (Cal.),  329. 
Glencross  v.  Evans   (Ariz.),  170. 
Glidden  v.  Whittier  (Fed.),  1700. 
Glide  v.  Dwyer  (Cal.),  31. 
Glock   V.    Howard    &    W.    C.    Co.    (Cal.), 

1742. 
Glover  &  Son  C.   Co.   v.   Ableine  Milling 

Co.   (Mo.),  226. 
Goldberg  v.  Kidd   (S.  Dak.),   1135. 
Goldberg  v.  Utley  (N.  Y.),  79. 
Goldberg-Bowen       Co.      v.      Stablemen's 

Union  (Cal.),  1560,  1561,  1928. 
Gold   Hunter   M.    &    S.    Co.   v.    Holleman 

(Idaho),  1701. 
Goldsmith  v.  Candy  Co.  (Mo.),  65. 
Goldsmith  v.  Joy  (Vt.),  390. 
Goldstone  v.   Ice  Co.    (Cal.),   1869. 
Goldtree  v.  City  of  San  Diego  (Cal.),  667. 
Gomez  v.  Scanlon  (Cal.),   339,  3*8,  671. 
Gomez  v.  Timon   (Tex.),   63. 
Goodenough  v.  McGrew  (Iowa),  1616. 
Gooding  v.   Chutes  Co.    (Cal.),   1468. 
Goodman  v.   Nichols   (Kan.),    1135. 
Goodnough,   In  re   (Wis.),  555. 
Goodwin  v.  Griffls   (N.  Y.),  34,  127. 
Gooler  v.  Eidness  (N.  Dak.),  1812,  1883. 
Gordan,   Ex  parte   (Cal.),   893. 


Gordon  v.    Chicago   etc.    R.    Co.    (Iowa), 

108. 
Gordon  v.  Livingston  (Mo.),  1248. 
Gorges  v.  Kessler  (Cal.),  34. 
Gorham  v.  Stockyards  Co.  (Iowa),  1460. 
Gorman  v.   Southern  Pacific  Co.    (Cal.). 

1493. 
Gossard  v.  Crosby  (Iowa),  1672. 
Gough  v.  Goldsmith   (Wis.),   1549. 
Gould  v.  Merrill  R.  &  L.  Co.  (Wis.),  1493. 
Gould  L.  &  C.  Co.  v.  Rocky  Mountain  B. 

&  T.   Co.    (Wyo.),   272. 
Gove  v.  Island  City  Merc.  etc.  Co.  (Ore.), 

1286. 
Gowdy  v.  Sanders  (Ky.),  1901. 
Grable  v.  Margrave  (III.),  407. 
Grace  v.  American  Central  I.  Co.  (U.  S.), 

1822. 
Graff  v.  Dougherty  (Mo.),  61,  1835,  1836, 

1934. 
Graham  v.  Franke  (Cal.),  201. 
Grain  v.  Aldrich  (Cal.),  33. 
Grand  v.  Dreyfus  (Cal.),  391. 
Grand    Lodge    A.    O.    U.    W.    v.    Miller 

(Cal.),   1345. 
Grand    Lodge    A.    O.    U.    W.    v.    Taylor 

(Colo.),  333,  1356. 
Grant  v.  Heverin   (Cal.),  1157. 
Grantmann  v.  Thrall   (N.  Y.),  433. 
Granger  v.  Robinson   (Cal.),   1935. 
Granger  v.  Sheriff   (Cal.),   432. 
Grangers'  Union  v.  Ash   (Cal.),  1821. 
Grattan  v.  Wiggins   (Cal.),   734. 
Graves  v.  Mono  Lake  H.  Min.  Co.  (Cal.), 

183. 
Gray  v.  Galpin  (Cal.),  15S3. 
Gray  v.  Palmer  (Cal.),  432. 
Gray's  Harbor  Boom   Co.  v.   McAmmant 

(Wash.),  1900. 
Great    Bend    Land    &    Lot    Co.    v.    Cole 

(Kan.),   727. 
Great     Western     G.     Co.     v.     Chambers 

(Cal.),  330,  1325,  1934. 
Green  v.  Brooks    (Cal.),    1157. 
Green  v.  Byers   (Idaho),   305,   335. 
Green  v.  Southern     Pacific     Co.      (Cal.), 

1544. 
Green  v.  Thornton    (Cal.),   33,    1134. 
Greenberg  v.  Western  Turf  Assn.   (Cal.), 

1744. 
Greenberg    v.     Whitcomb     Lumber     Co. 

(Wis.),   1540. 
Greenebaum  v.  Taylor  (Cal.),  1605. 
Greenleaf  v.  Jacks   (Cal.),  619. 
Greenman  v.  O'Riley  (Mich.),  406. 
Green  way  v.  James  (Mo.),  70,  73. 
Greenwood   v.    Burton    (Neb.),    1328. 
Greer  v.  Strozier  (Ark.),  144. 


TABLE  OF  CASES. 


1985 


[References  are  to  pages.] 


Gregory  v.  Dlggs   (Cal.),  91. 

Gregory  v.  Hart   (Wis.),  104. 

Gregory  v.  Kaar  (Neb.),  520. 

Greve  v.  Echo  Oil  Co.   (Cal.),  1273,   1930. 

Grier  v.   Strother  (Mo.),   1883. 

Griffeth  v.  Griffeth  (111.),  451. 

Griffin  v.  Chubb   (Tex.),   70. 

Griffith  v.  Woolworth   (Neb.),  1329. 

Griggs  v.  St.  Paul   (Minn.),   1357. 

Grimes  v.  Cullison  (Okla.),  35. 

Grimes  v.  Tait    (Okla.),    1397. 

Grimley   v.    Santa   Clara   County    (Cal.), 

691,  €93. 
Grimmer  v.  Carlton   (Cal.),  1772. 
Grisby  v.  Barton  County  (Mo.),  107. 
Grissom  v.  Hofius  (Wash.),  1542. 
Griswold  v.  Haas   (Mo.),  129. 
Griswold  v.  Pieratt  (Cal.),  91. 
Grogan  v.  San  Francisco  (Cal.),  1335. 
Groneweg  etc.  Co.  v.  Estes  (Mo.),  271. 
Gronfler  v.  Puymirol  (Cal.),  432. 
Groom  v.  Bangs   (Cal.),  203. 
Grosovosky   v.    Goldenberg    (Minn.),    432. 
Grossmayer,  In  re  (U.  S.),  882. 
Grove  v.  Kansas  City  (Mo.),   175. 
Groves  v.  Terry  (Mo.),  1864,  1865. 
Grundel  v.  Union  Iron  Works  (Cal.),  246. 
Gulf  Colorado  etc.  R.  Co.  v.  Miller  (Tex.), 

1828. 
Gunsel  v.  McDonnell  (Iowa),  15S2. 
Gurnsey  v.  Northern   California  etc.   Co. 

(Cal.),  31,   176,  177,   1125,   1134. 
Gustafson  v.   Wind    (Iowa),   1615. 
Gustin  v.  Crockett  (Wash.),  731. 
Guynn  v.   McCauley   (Ark.),   71. 

Hacker  v.  Heiney  (Wis.),  391. 

Hackett    v.     Larimer    &    Weld    R.     Co. 

(Colo.),  1236. 
Hadwin  v.  Home  Mutual  Ins.  Co.   (Mo.), 

35,   62. 
Haeussler    v.    Missouri    Iron    Co.     (Mo.), 

822. 
Hafern  v.  Davis   (Wis.),   433. 
Haggart  v.  Ranney  (Ark.),   69. 
Haggin  v.  Kelly  (Cal.),  30,  1133. 
Hahn  v.  Cooper  (Wis.),  397,  405. 
Hahs    v.    Cape    Girardeau    &    C.    R.    Co. 

(Mo.),  162. 
Haight  v.   Green    (Cal.),   30. 
Haile  v.  Smith  (Cal.),  1135. 
Haines  v.  Pearson  (Mo.),  107. 
Hajek  v.   Benevolent  Society   (Mo.),   226. 
H.   A.   Johnson   &  Co.   v.    Springfield  Ice 

etc.  Co.   (Mo.),  1SS3. 
Hale  v.  Everett   (N.  H.),  1157. 
Hale  *.  San   Bernardino   etc.    Co.    (Cal.), 

1504. 


Hall  v.  Arnott  (Cal.),  734. 

Hall  v.  Blackman   (Idaho),   1224. 

Hall  v.  DeCuir  (U.  S.).  411. 

Hall  v.  Harris  (Tex.),  1157. 

Hall  v.  Hedrick   (Ind.),  30. 

Hall  v.  Henninger  (Iowa),  1670. 

Hall  v.  Kaufman   (Cal.),  747. 

Hall  v.  Linn   (Colo.),   1224. 

Hall  v.  Plaine  (Ohio),  183. 

Hall  v.  Vanier   (Neb.),   290. 

Hallack  v.  Loft  (Colo.),  1029. 

Hallack  v.  Stockdale    (Colo.),    403. 

Hallack  L.    &    M.    Co.    v.    Gray    (Colo.), 

1603. 
Halleck  v.  Moss   (Cal.),  32. 
Hallock  v.  Jaudin    (Cal.),    34,    231,    1364, 

1934. 
Halsey  v.  Henry  Jewett  Dr.  Co.  (N.  Y.), 

272. 
Hamer  v.  Hathaway  (Cal.),  1605. 
Hamill  v.  Thompson  (Colo.),  33. 
Hamilton  v.  Dooly   (Utah),   276. 
Hamilton  v.  McLean   (Mo.),  1447. 
Hammett  v.   Trueworthy   (Mo.),    1397. 
Hammond  v.  Railway  Co.  (S.  C),  1492. 
Hampshire  v.   Floyd  (Tex.),   730. 
Hanchey   v.    Southern   Home    etc.    Assn. 

(Ala.),  272. 
Hancock  v.  Board    of    Education    (Cal.), 

108. 
Hancock  v.  Bowman   (Cal.),   162. 
Handley  v.  Sprinkle   (Mont.),  1865. 
Handy  v.  Insurance  Co.   (Ohio  St.),  1811. 
Hankins  v.  Heims  (Ariz.),  162,  793. 
Planks  v.  Hanks  (Mo.),  35,  69,  485. 
Hanley  v.  Banks   (Okla.),  760. 
Hanna  v.  Barker  (Colo.),  1649. 
Hannah  v.  Hannah   (Mo.),  S22. 
Hannan  v.  McNickle  (Cal.),  1135. 
Hanner  v.  Silver  (Ore.),  1063. 
Hanson  v.  Neal   (Mo.),  36,   62,  147,   862. 
Hanson    v.    Svarverud    (N.    Dak.),    10S9, 

1156. 
Haralson    v.    San    Antonio     T.     R.     Co. 

(Tex.),  1545. 
Harding  v.  Bedoll   (Mo.),  1S64. 
Hardwick  v.  Cox  (Mo.),  73. 
Hargadine  v.  Van  Horn   (Mo.),   1S50. 
Harkinson  v.  Dry  Placer  A.  Co.   (Colo.), 

177. 
Harlan  v.  Harlan  (Cal.),  536. 
Harman  v.  St.  Louis   (Mo.),   670. 
Harney  v.   Dutcher  (Mo.),   200. 
Harper  v.  Fidler  (Mo.),  12S. 
Harper  v.  Gilbert  (Mass.),  555. 
Harper  v.  Goldschmidt  (Cal.),  334. 
Harper  v.  Hildreth    (Cal.),    1935. 
Harralson  v.  Barrett  (Cal.),  691. 


1986 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Harrington,  Estate  of  (Cal.),  1835. 

Harris  v.  Brooker    (Wash.),   892. 

Harris  v.  Columbia  etc.  Co.  (Tenn.),  272. 

Harris  v.  Harris   (Colo.),   1885. 

Harris  v.  Kellog   (Cal.)   1908. 

Harris  v.  Lester   (111.),   1850. 

Harris  v.  Tyson  (Pa.),  1774. 

Harris  L.  Co.  v.  Morris  (Ark.),  1864. 

Harrison  v.  Carlson   (Colo.),  106. 

Harrison  v.  Kramer  (Iowa),  1582. 

Harrison  v.   Trader  (Ark.),  1695. 

Harrison's  Admr.  v.  Hasting  (Mo.),  108. 

Harshman  v.  Northern  Pacific  R.  Co.  (N. 

Dak.),  201. 
Hart  v.  Harrison  etc.   Co.   (Mo.),   1263. 
Hart  v.  Hoffman  (N.  Y.),  1333. 
Hart  v.  Moulton  (Wis.),  499. 
Hart  v.  Seattle   (Wash.),   974. 
Hart  v.  Walton  (Cal.),  33,  1781. 
Hartford  Co.  v.  Magee  (111.),  1357. 
Hartwig  v.  lies  (Iowa),  1670. 
Hartzell  v.  McClurg  (Neb.),  1365. 
Harvey  v.    Denver   etc.    R.    Co.    (Colo.), 

330. 
Hasbrouck  v.  Armour  &  Co.   (Wis.),  245. 
Haseltine  v.  Central  Nat.  Bank   (U.  S.), 

1294. 
Haseltine  v.  Smith  (Mo.),  64. 
Haskell  County  Bank  v.  Santa  Fe  Bank 

(Kan.),  79. 
Hastie  v.  Henkins  (Wash.),  1182. 
Hastings     v.     First   Nat.    Bank    (Colo.), 

1699. 
Hastings  v.  Stetson  (Mass.),  1549. 
Hastings  etc.  R.  Co.  v.  Whitney  (U.  S.), 

1134. 
Haston   v.    Sigel-Campion    L.    S.    C.    Co. 

(Kan.),  711. 
Hathorn  v.  Calef  (U.  S.),  616. 
Hauser     &     Haines     M.    Co.    v.    McKay 

(Wash.),  128. 
Hauswer  v.  Steigers  (Mo.),  391. 
Hawarden    v.    Youghiogheny     etc.     Coal 

Co.    (Wis.),   1553. 
Hawes  v.  Oakland  (U.  S.),  274. 
Hawthorne  v.   Siegel   (Cal.),   1743. 
Haydon  v.    St.    Louis   etc.    R.   Co.    (Mo.), 

1324. 
Hayes,   Ex  parte    (Cal.),   411. 
Hayes  v.  Porter  (Me.),  183. 
Hayward  v.  Mason  (Wash.),  1865. 
Hazeltine  v.  Smith  (Mo.),  65. 
Head  v.  Georgia  etc.  R.  Co.   (Ga.),  1492. 
Hearne  v.  DeYoung  (Cal.),  390. 
Hearst  v.  Hart  (Cal.),  1933. 
Heaton  v.  Lea  (Iowa),  271. 
Hebb  r.  County  Court  (W.  Va.),  1866. 
Heb&r  v.  Heber's  Estate  (Wis.).  329,  1030. 


Hecht  v.  Caughron  (Ark.),  71. 
Hedstrom  v.  Union  Trust  Co.   (Cal.),  10&. 
Heinrich  v.  Heinrich  (Cal.),  1883. 
Heizer  v.  Kingsland  etc.  Mfg.  Co.  (Mo.), 

1248. 
Helling  v.  Darby   (Kan.),  1333. 
Helmut  v.  Benoist  (Mo.),  70,  71. 
Heman  v.  Glann  (Mo.),  107. 
Hemenway  v.  Abbott  (Cal.  App.),   1799, 

1800. 
Hemenway  v.  Beecher  (Wis.),  331. 
Hemmer  v.  Dunlavey  (Iowa),  269. 
Henderson  v.  Gibson   (Md.),  1447. 
Henderson  v.  Grammar  (Cal.),  1417. 
Henderson  v.  Henderson  (Mo.),  105. 
Henderson  v.  Standard     Fire     Ins.      Co. 

(Iowa),  145. 
Hendy  v.  March  (Cal.),  1287. 
Henke     v.     Eureka     Endowment     Assn. 

(Cal.),   1364. 
Henley  v.  Hotaling  (Cal.),  735. 
Henley  v.  Wilson  (Cal.),  368. 
Hennessy  v.  Nicol  (Cal.),  1822. 
Henni  v.  Fidelity  B.  &  L.  Assn.   (Neb.), 

272. 
Henry  v.  McKittrick  (Kan.),  1773,  1775. 
Henry  Inv.  Co.  v.  Semonian  (Colo.),  1287. 
Hentig  v.  Johnson  (Cal.),  80. 
Hentig  v.  Redden  (Kan.),  1133. 
Hepp  v.   Heufner   (Wis.),   104,   433. 
Herbert  Kraft  Co.  Bank  v.  Bank  of  Or- 

land   (Cal.),   601. 
Herdman  v.  State   (Neb.),   1866. 
Herman  v.  Hecht  (Cal.),  619. 
Herriman  v.  Menzies   (Cal.),  1935. 
Herring  v.  Neely  (Iowa),  33. 
Herrlich  v.  McDonald  (Cal.),  1835. 
Hershiser  v.  Ward  (Nev.),  1469. 
Herzog   v.    Atchison    etc.    R.    Co.    (Cal.), 

1774. 
Hewitt  v.  John  Week  L.  Co.   (Wis.),  31. 
Hewitt  v.  Prime  (N.  Y.),  404. 
Hewitt  v.  Steele  (Mo.),  1933. 
Heyward  v.  Judd  (Minn.),  734. 
Hibernia  Sav.  Bank  v.  London  etc.   Ins. 

Co.  (Cal.),  735. 
Hibernia  S.   &   L.    Soc.   v.   Boyd    (Cal.), 

1442. 
Hibernia   S.   &   L.    Soc.  v.   Lewis    (Cal.), 

1901. 
Hibernia  S.  &  L.  Soc.  v.  Ordway  (Cal.), 

794. 
Hibernia  S.  &  L.  Soc.  v.  Thornton  (Cal.), 

34. 
Hickory  County  v.   Fugate   (Mo.),  36,  62. 
Higgins  v.  Beckwith   (Mo.),  792. 
Higgins  v.  Brown   (Okla.),   882. 


TABLE  OF  CASES. 


1987 


[References  are  to  pages.] 


Hlgginsv.  Milwaukee  Brew.  Co.  (Wash.), 

600. 
Higgins  v.  Wortell    (Cal.),    1278. 
Hight  v.  Batley  (Wash.),  225. 
Hihn  Co.  v.  Fleckner  (Cal.),  1133,  1135. 
Hihn  v.  Mangenberg  (Cal.),   1133. 
Hildebrand   v.    American   Fine   Arts    Co. 

(Wis.),  1263. 
Hildreth  v.  Montecito  C.   W.   Co.    (Cal.), 

176. 
Hill  v.  Barner  (Cal.),  276. 
Hill  v.  1'almer  (Wis.),  1323. 
Hill  v.  Rich  Hill  Coal  Co.  (Mo.),  36. 
Hill  B.  &  T.  Co.  v.  Gibson  (Colo.),  36. 
Hill-Dodge  Banking  Co.  v.  Loomis  (Mo.), 

71,  332,  333. 
Hilliard   v.   Wisconsin   L.   I.    Co.    (Wis.), 

71. 
Hinckley  v.  Casey  (Wash.),  1426,  1430. 
Hiner  v.  Hiner  (Cal.),  512. 
Hitchcock  v.   Carruthers    (Cal.),   65. 
Hitchings    v.    City    of    Maryville    (Mo.), 

1742. 
Hobbs  v.  Hobbs  (Cal.),  451. 
Hobbs,  In  re  (Fed.),  411. 
Hocum  v.  Weitherick  (Minn.),  1545. 
Hodges  v.  Bales   (Ind.),  406. 
Hoepper   v.    Southern    Hotel    Co.    (Mo.), 

1458. 
Hoester  v.  Sammelmann  (Mo.),  31. 
Hofacre   v.    City    of    Monticello    (Iowa), 

1780. 
Hoffman  v.  McCracken   (Mo.),  36. 
Hoffman-Marks  Co.  v.  Spires  (Cal.),  161, 

945,  1662. 
Hoffmann  v.  Cockrell   (Iowa),  1293. 
Hogan  v.  Cregan  (N.  Y.),  407. 
Hogan  v.  Hinchey   (Mo.),  1864. 
Hogan    v.     Pacific     Endowment     League 

(Cal.),  1355. 
Holgate  v.  Broom   (Minn.),  31. 
Holland  v.  State  (Fla.),  S82. 
Holland  v.  Western  B.  &  T.  Co.   (Tex.), 

271,  1890. 
Holliday  v.  Holliday  (Cal.),  361. 
Holliday  v.  Jackson  (Mo.),  107. 
Hollingsworth   v.    Davis-Daly    E.    C.    Co. 

(Mont.),  1505. 
Hollister  V.  State  (Idaho),  30. 
Kolloway  v.  Holloway  (Mo.),  822. 
Holly  v.  Heiskell   (Cal.),   1649. 
Holmes  v.  De  Camp  (N.  Y.),  1287. 
Holmes  v.  Lucas   Co.    (Iowa),    1293. 
Holmes  v.  Richet  (Cal.),  314. 
Holmes  v.  Warren   (Cal.),   1934. 
Holt  v.  Holt  (Okla.),  36,  499. 
Holt  v.  James  (Cal.),  893. 
Holt  v.  Nielson  (Utah),  68,   79. 


Holz  v.  Hanson   (Wis.),  175. 
Holzman  v.  Martinez  (N.  Mex.),  1698. 
Home  and  Farm   Co.   v.   Freitas    (Cal.), 

1776. 
Home  Insurance  Co.  v.  Atchison  etc.  R. 

Co.  (Colo.),  668. 
Home  Fire  Ins.  Co.  v.  Johansen   (Neb.), 

71. 
Home  S.  &  T.  Co.  v.  Hicks  (Iowa),  1670. 
Homestead  Land  Co.  v.  Saveland  (Wis.), 

1933. 
Hook  v.  White  (Cal.),  142,  1397. 
Hoover  v.  Horn  (Colo.),  1885. 
Hopwood  v.  Patterson   (Ore.),   269. 
Horn  v.  Newton  City  Bank  (Kan.),  1381. 
Horton  v.   City  of  Seattle    (Wash.),    246, 

668. 
Hoskins     v.     Northern     Pacific     R.     Co. 

(Mont.),  64,  1493. 
Hoskins  v.  Scott  (Ore.),  1252. 
Hotchkiss,  In  re  (Cal.),  1956. 
Hotchkiss  v.  Keck   (Neb.),  31,  1671. 
Houghton  Co.  v.  Kennedy  (Cal.),  1639. 
House  v.  McMullen  (Cal.),  1778. 
House  v.  Meyer  (Cal.),  1541,  1545. 
Houser    &    Haines    M.     Co.    v.    McKay 

(Wash.),   146. 
Houser  v.  Smith  (Kan.),  31. 
Houston  etc.  R.  Co.  v.  Hook  (Tex.),  202. 
Howard  v.  Howard  (Cal.),  498. 
Howe  v.  Coldren  (Nev.),  1821.  ' 
Howell  v.  Howell  (Cal.),  500. 
Howes  v.  Lynde  (Mont.),  1286. 
Howitz,  Ex  parte  (Cal.),  32,  1622. 
Hoye  v.  Raymond  (Kan.),  79. 
Hoyt  v.  Gouge   (Iowa),   226. 
Hoyt  v.  Oliver  (Mo.),  62. 
Hubbard  v.  Slavens  (Mo.),  36,  61,  62,  69, 

275,  1132. 
Hubbell  v.  Medbury  (N.  Y.),  1335. 
Huddleston  v.   Borough   (Pa.),  18S4. 
Hudson,  In  re  (Cal.),  1956. 
Hudson  v.  Cahoon    (Mo.),    62. 
Hudson  v.  Wabash  W.  R.  Co.  (Mo.),  1540. 
Hudson  v.  Wright  (Mo.),  147. 
Huene  v.  Cribb  (Cal.),  66,  176,  1145. 
Huey  v.  Starr  (Kan.),  1773,  1775. 
Huff  v.  Laclede  L.  &  I.  Co.  (Mo.),  792. 
Huff  v.  Sweetser  (Cal.),  1088. 
Huffman  v.  Cartwright   (Tex.),   1157. 
Huffman  v.  Western  M.  Co.   (Tex.),   272. 
Huffner  v.  Sawday  (Cal.),  67,  1224. 
Huggard  v.  Glucose  Co.   (Iowa),   1460. 
Huggins  v.  Kavanaugh   (Iowa),  1616. 
Hughes  v.  Carson   (Mo.),   69. 
Hughes  v.  Fisher   (Colo.),   177. 
Hughes  v.  Territory    (Ariz.),    1866. 
Hughes  v.  Wheeler   (Cal.),   1582. 


1988 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Hulett  v.  Hamilton  (Minn.),  1398. 
Humble  v.   Shoemaker  (Iowa),  405. 
Humboldt    S.    Soc.    v.    Burnham    (Cal.), 

1030. 
Hume  v.  Hale  (Mo.),  1118. 
Humphrey  v.  Pope  (Cal.),  408. 
Humphreys  v.  Davidson  (Okla.),  90. 
Hunt  v.  "Ward  (Cal.),  619. 
Hunter  v.  Hudson  R.  Co.   (N.  Y.),  1604. 
Huntington  v.   Finch   (Ohio),   1447. 
Hurd  v.  Simpson   (Kan.),  246. 
Hurgren  v.  Union  Mutual  L.  I.  Co  (Cal.), 

142. 
Hurlbert  v.  Young  (N.  Y.),  433. 
Hurlbutt  v.    N.    W.    Spaulding   Saw   Co. 

(Cal.),  33. 
Hurley  v.  Ryan  (Cal.),  62. 
Hurst  v.  Ash  Grove  (Mo.),  129,  175. 
Hurt  v.  Ford  (Mo.),  1S84. 
Husheon  v.  Husheon  (Cal.),  730. 
Hutchings  v.  Castle  (Cal.),  1582. 
Hutchinson  v.   Ainsworth    (Cal.),   729. 
Hyde  v.  Hazel  (Mo.),  73. 
Hyde  v.  Mangan  (Cal.),  1135. 
Hyman  v.  Cameron  (Miss.),  729. 
Hyman  v.  Coleman  (Cal.),  616,  619. 
Hyman  v.   Grant   (Tex.),   276. 

Iage  v.  Bossieux  (Va.),  1417. 

Iaeger  v.  Metcalf  (Ariz.),  368. 

Idaho  Fruit  L.  Co.  v.  Great  Western  B. 

S.   Co.    (Idaho),   1237. 
Idaho  P.   M.  Co.  v.  Green    (Idaho),  1885. 
Idaho  Trust  Company  v.  Miller  (Idaho), 

65,   1030,   1046. 
Illinois  Sewing      M.      Co.      v.      Harrison 

(Colo.),  1649. 
Illinois  Steel  Co.  v.  Budzisz   (Wis.),  104. 
Improved    Fig    Syrup    Co.    v.    California 

Fig  Syrup  Co.    (Fed.),   1613. 
Independence   League   v.    Taylor    (Cal.), 

232. 
Ingram  v.  Wilson  (Fed.),  8. 
Ingram  v.  Wishkah  Boom  Co.    (Wash.), 

1853. 
International     etc.     R.     Co.     v.     Harris 

(Tex.),  1460. 
International    Development    Company    v. 

Clemens  (Wash.),  108,  1090. 
International     etc.     R.     Co.     v.     Ormond 

(Tex.),  231. 
Iowa  State  Bank  v.  Cereal  etc.  Broker- 
age Co.    (Iowa),  1293. 
Iowa  etc.  Co.  v.  Hoag  (Cal.),  1224. 
Irvine  v.  Rapp  (Cal.),   91,   222,  1253. 
Irvine  v.  Perry  (Cal.),  1899. 
Irving  v.  Carpentier    (Cal.),    236. 
Irving  v.  Thomas  (Me.),  1500. 


Irwin  v.  McDowell  (Cal.),  682. 
Isbell  v.  Southworth  (Tex.),  794. 
Isenhoot  v.  Chamberlain  (Cal.),  1106. 
Ittner  v.  Hughes   (Mo.),   1933. 

Jacobs  v.  Scott  (Cal.),  511. 
Jacobson  v.  Lassas   (Ore.),  734. 
James  v.  Yeager   (Cal.),   183. 
Jameson  v.  Hay  ward    (Cal.),    822. 
Jameson  V.  Simonds  Saw  Co.   (Cal.),  130. 
Jamison  v.  Weaver   (Iowa),   1850. 
Jarman  v.  Rea  (Cal.),  389. 
Jean  v.  Hennessy    (Iowa),    131. 
Jefferson  County  v.  Hawkins  (Fla.),  691. 
Jenkins  v.  California    Stage    Co.    (Cal.), 

1821. 
Jenkins  v.  Clopton    (Mo.),   1293. 
Jenkins  v.  Frink   (Cal.),   1156. 
Jenkins  v.  Van  Schaack   (N.  Y.),  822. 
Jennings    v.    Bank    of    California    (Cal.), 

600. 
Jennings  v.  First  National  Bank  (Colo.), 

177. 
Jernigan  v.  Finley   (Tex.),    882. 
Jerome  v.  Stebbins    (Cal.),   330. 
Jessup,  In  re   (Cal.),   1063. 
Jewett  v.  Osborne   (Neb.),  1527. 
Jockheck  v.  Davies    (Kan.),   822. 
John   Breuner   Co.   v.    King    (Cal.),    1411, 

1412,  1415. 
John  Brickell  Co.  v.  Sutro  (Cal.),  1938. 
Johns  v.  Schmidt    (Kan.),   1669. 
Johnson  v.  Anderson  (Kan.),  175. 
Johnson  v.  Brooks  (N.  Y.),  1773. 
Johnson  v.  Campbell    (Ark.),   130. 
Johnson  v.  Carter  (Iowa),  146,  1582. 
Johnson  v.  Chicago  etc.  Elevator  Co.  (U. 

S.),  843. 
Johnson  v.  Kirby  (Cal.),  31,  600. 
Johnson  v.  Langdon   (Cal.),  602. 
Johnson    v.     Mammoth    Vein    Coal     Co. 

(Ark.),    1460. 
Johnson     v.     Northport     S.     &     R.     Co. 

(Wash.),  1564. 
Johnston  v.  Railroad  (Iowa),  1671. 
Johnson  v.  Saum    (Iowa),    1293. 
Johnson     v.     Southern     Pacific     R.     Co. 

(Cal.),  149S,  1500,  1501. 
Johnson  v.  Strong  (Ky.),  36S. 
Johnson  v.  Superior  Court  (Cal.),  499. 
Johnson  v.  Taylor   (Cal.),   734. 
Johnson  v.  Phenix  Ins.   Co.    (Cal.),    1935. 
Johnson  v.  United    R.    Co.    of    St.    Louis 

(Mo.),   31. 
Johnson  v.  Vance    (Cal.),    30. 
Johnson  v.  Vickers    (Wis.),   71,    184. 
Johnson  v.  Withers  (Cal.),  1784. 


TABLE  OF  CASES. 
[References  are  to  pages.] 


1989 


Johnson-Brlnkman  Com.  Co.  v.  Missouri 

Pacific  R.  Co.  (Mo.),  1650. 
Johnston    v.    San    Francisco    Sav.    Union 
'  (Cal.),   432. 

.Jolliffe  v.  Steele   (Cal.),   782,   1928. 
Jones  v.  Bank  of  Leadville  (Colo.),  1712, 

1713. 
Jones  v.  Board  of  Trade  (Kan.),  1671. 
Jones  v.  Burtis    (Neb.),   730. 
Jones  v.  City   of  Petaluma   (Cal.),    1152, 

1153. 
Jones  v.  Earl   (Cal.),  1604. 
Jones  v.  Hayden   (Colo.),   1090. 
Jones  v.  Howard    (Miss.),   1324. 
Jones  v.  Jones  (Wis.),  497. 
Jones  v.  Minnesota    T.    R.    Co.    (Minn.), 

202. 
Jones  v.  Monson  (Wis.),  31,  408. 
Jones  v.  Nicholl    (Cal.),   32. 
Jones   v.    Pioneer   Cooperage    Co.    (Mo.), 

1460. 
Jones  v.   Prospect  Mountain   Tunnel   Co. 

(Nev.),  814. 
Jones  v.  Railroad  Co.   (Mo.),   62. 
Jones  v.  Rush   (Mo.),  329. 
Jones  v.  Shepard   (Mo.),   146. 
Jones  v.   Springfield   Tr.    Co.    (Mo.),    105, 

130. 
Jones  v.  Standiferd  (Kan.),  728. 
Jones  v.  Steamship  Cortes  (Cal.),  8,  1492. 
Jones  v.  Whitney   (Mo.),   107. 
Jonesboro   etc.   R.    Co.   v.    Cable    (Ark.), 

1864. 
Jonesboro    etc.    R.    Co.    v.    United    Iron 

Works  Co.    (Mo.),   1883. 
Jordan  v.  Greig   (Colo.),   106. 
Jordan  v.  Railroad    (Mo.),    227. 
Jordan  v.  Missouri  etc.  T.  Co.  (Mo.),  451. 
Jordan  v.  Missouri  etc.  T.  Co.  (Mo.),  499. 
Jordan  v.  Transit  Co.  (Mo.),  146. 
Jordan  v.  Transit  Co.   (Mo.),  141. 
Jordan  v.  Western  Union  Tel.  Co.  (Kan.), 

271,   272. 
Jordan  Co.  v.  Sperry  Bros.   (Iowa),  1936. 
Jordan  Co.  v.  Sperry  Bros.   (Iowa),  36. 
Joshua    Hendy    Machine    Works,    In    re 

(Cal.),  1003. 
Joshua  Hendy  Machine  Works   v.    Gray 

(Cal.),   998,   1002. 
Joseph,  Estate  of  (Cal.),  1046. 
Joseph  v.  Holt  (Cal.),  34. 
Joutsen,  Ex  parte  (Cal.),  67. 
Joyce  v.  Growney    (Mo.),   105. 
Joyce  v.  New  York  (N.  Y.),  1447. 
Joyce  v.  Shafer  (Cal.),  1105. 
Joyce  v.  White  (Cal.),  1287. 
Judah  v.  Fredericks    (Cal.),    176. 
June  &  Co.  v.  Brubaker  (Tex.),  274. 
Jury's  PI.— 126. 


Just  v.  Idaho   C.    &   I.    Co.    (Idaho),    275, 

276,  587,  600. 
J.    Walter    Thompson    Co.    v.    Whitehed 

(111.),  273. 

Kaiser  v.  Kaiser  (N.  Y.),   499. 

Kahn  v.  Traders'  Ins.  Co.   (Wyo.),  170. 

Kahnweiler  v.   Phoenix  Ins.    Co.    (Fed.), 

170. 
Kaminski  v.   Iron  Works   (Mo.),  1544. 
Kane  v.  Rippey    (Ore.),    1105. 
Kanter  v.   Clerk  of  Circuit  Court   (111.), 

1866. 
Kansas  etc.    R.    Co.    v.    Pointer    (Kan.), 

1545. 
Kansas  City  etc.  R.  Co.  v.  Kier  (Kan.), 

1457. 
Kansas  City  etc.  R.  Co.  v.  Story  (Mo.), 

973. 
Kansas  City  Nat.  Bank  v.  Landis  (Mo.), 

1397. 
Kansas  Farmers'  Fire  Ins.   Co.  v.   Sain- 

don  (Kan.),  1355. 
Kansas  Pacific  R.  Co.  v.  Cutter  (Kan.), 

334. 
Kanter  v.   Clerk  of  Circuit  Court  (111.), 

1866. 
Kapp  v.  Griffith   (Cal.),  794. 
Karr  v.  Parks  (Cal.),  1504. 
Karren  v.  Karren    (Utah),    500. 
Kaschke  v.  Camfleld  (Colo.),  974,  975, 
Kasson,  Estate  of  (Cal.),  1935. 
Kaston  v.  Storey  (Ore.),  735. 
Katz  v.  Walkinshaw    (Cal.),    1189. 
Kavanaugh  v.   City  of  St.   Louis    (Mo.), 

201. 
Keady  v.  United  R.  Co.  (Ore.),  175. 
Kearney  v.  Fitzgerald  (Iowa),  1616. 
Kearns  v.  Heitman  (N.  C),  1288. 
Keasbey,  In  re,  v.  Mattison  Co.  (U.  S.), 

1613. 
Keater  v.  Hock  (Iowa),  271. 
Keegin  v.  Joyce  (Cal.),  65,  1271. 
Keeley  v.  Great  Northern  R.  Co.  (Wis.), 

1505. 
Kehoe  V.  Hansen   (S.  Dak.),  951. 
Kehr  v.  City  of  Columbia  (Mo.),  904. 
Kellog  v.  Malick    (Wis.),    1118. 
Kellogg  v.  Larkin   (Pa.),   63. 
Kellerman    Contracting    Co.    v.    Chicago 

etc.    Co.    (Mo.),    34,    129. 
Kelley  v.  Seay  (Okla.),  1430. 
Kelley's  Heirs  v.  McGuire   (Ark.),  33. 
Kelly  v.  Andrews   (Iowa),  1670. 
Kelly  v.  Northern  Pacific  R.  Co.  (Mont.), 

30. 
Kemmerer  v.  Pollard  (Idaho),  1582. 
Kemper  v.  Lord  (Kan.),  1396. 


1990 


TABLE  OF  CASES. 
[References  are  to  pages.] 


Kennedy  v.  Brown  (Kan.),  1648. 
Kennedy    v.    California    Sav.    Bank    (97 

Cal.),   616,   619. 
Kennedy    v.    California    Sav.    Bank    (101 

Cal.),   274. 
Kennedy  v.  Holiday   (Mo.),   407. 
Kennedy  v.  Garrigan   (S.  Dak.),  1615. 
Kennedy  v.  Kennedy    (Cal.),    1544. 
Kennedy  V.  Roberts    (Iowa),    62. 
Kenner  v.  Doe  Run  Lead  Co.    (Mo.),   79. 
Kenney  v.  Streeter  (Ark.),  68,  69,  1089. 
Kent  etc.   Co.  v.   Tuttle    (Mont.),   272. 
Kenny  v.  Kennedy  (Cal.),  277,  1466. 
Keogh  v.  Noble   (Cal.),   1156. 
Kern  v.  Insurance   Co.    (Mo.),   35. 
Kerr  v.  Simmons   (Mo.),  1263. 
Kerrison  v.  Stewart   (U.   S.),   201. 
Kersten  v.  Weichman  (Wis.),  105,  108. 
Keteltas  v.  Myers  (N.  Y.),  1397. 
Keyes  v.  Cyrus   (Cal.),   1179. 
Kidd  v.  Mitchell   (S.   Car.),   433. 
Kidder  v.  Stevens  (Cal.),  1031. 
Kiger    v.     McCarthy     Co.     (Cal.),     1773, 

1774,  1912. 
Killgore  v.  Carmichael  (Ore.),  1810. 
Kimball  v.  Connor    (Kan.),    728. 
Kimball  V.  Goodburn  (Mich.),  1713. 
Kimball      v.       Richardson-Kimball      Co. 

(Cal.),    225,   1701. 
Kimball  v.  Union  Water  Co.    (Cal.),  600. 
Kimball  Co.  v.  Redfield   (Ore.),  1649. 
Kime  v.  Edgemont  (S.  Dak.),  1650. 
Kimmerly  v.  McMichael   (Neb.),  33,  1934. 
Kinard  v.  Jordan   (Cal.),  145,   245. 
King  v.  Davis    (Cal.),    1594. 
King,  Ex  parte   (Cal.),   1948. 
King  v.  Gildersleeve    (Cal.),    1772. 
King  v.  Nichols   etc.   Co.    (Minn.),   64. 
King  v.  Wise   (Cal.),  1156. 
Kingman  v.  Mowry    (111.),   1594. 
Kingman  etc.    Co.    v.    Bantley    etc.    Co. 

(Mo.),  67,  68,  79. 
Kinkead  v.   McCormick  Co.    (Iowa),   334. 
Kinlen  v.  Metropolitan  St.  R.  Co.   (Mo.), 

1869. 
Kirby  v.  Shrader  (Neb.),   730. 
Kirchman    v.    Tuffli    Bros.    (Ark.),    1261, 

1743. 
Kirkwood  v.  Meramec  H.  Co.    (Mo.),  69. 
Kirsch  v.  Kirsch   (Cal.),   1901. 
Kitcherside  v.  Myers    (Ore.),   1810. 
Kline  v.  Galland  (Wash.),   276. 
Knapp  v.  Cowell  (Iowa),  1864. 
Knapp  v.  Roche  (N.  Y.),  329. 
Knapp  v.  St.  Louis  (Mo.),  69. 
Knight  v.  Boring  (Colo.),  107. 
Knight  v.  Lawrence    (Colo.),    1133. 
Knight  v.  Le  Beau  (Mont.),  1029. 


Knight  v.  People  (Colo.),  1932. 
Knorpp  v.  Wagner  (Mo.),  1460. 
Knott  v.  McGilvray  (Cal.),  203. 
Knowles  v.  New  Sweden  i.  Dist.  (Idaho), 

73,  1223,   1224,  1863,  1864. 
Knowles  v.  Sandercock  (Cal.),   616,  1288, 

1852. 
Knutzen  v.  National  L.  S.  I.  Co.  (Minn.). 

1357. 
Knutsen  v.  Phillips  (Idaho),  1700. 
Koch  v.  Story   (Colo.),   1224. 
Koester  v.  State   (Kan.),  1669. 
Kofoed  v.  Gordon  (Cal.),  735. 
Kohler  v.  Agassiz   (Cal.),   1901. 
Koken  Iron  Works  v.  Robertson  Ave.  R. 

Co.   (Mo.),  951. 
Kolff  v.  St.  Paul  Fuel  Ex.   (Minn.),  1670. 
Koontz   v.    Oregon   R.    &   N.    Co.    (Ore.). 

1527. 
Kornblum  v.   Arthurs    (Cal.),    17S6,    1789. 

1928. 
Kortright  v.  Cady   (N.  Y.),   1417. 
Kountze  v.  Kennedy  (N.  Y.),  1582. 
Koyer  v.  Willmon    (Cal.),   32. 
Kramm     v.     Stockton     Electric     R.     Co. 

(Cal.),  1869. 
Krasky  v.  Wollpert   (Cal.),   175. 
Krebs    Hop    Co.    v.    Taylor    (Ore.),    1649, 

1650. 
Krekeler  v.  Ritter  (N.  Y.),   270. 
Kriess  v.  HotaHng   (Cal.),   1003. 
Kronski     v.  Railroad  Co.   (Mo.),   1811. 
Krouse  v.  Woodward  (Cal.),  1417,  1773. 
Kruse  v.  Wilson    (111.),   1850. 
Kullman,  Salz  &  Co.  v.  Sugar  A.  M.  Co. 

(Cal.),  1244. 
Kumblad  v.  Allen   (Wash.),  1431. 
Kyle  v.  Fehley  (Wis.),  1802. 

Laclede  Const.  Co.  v.  Iron  Works  (Mo.), 

129. 
Lacoste  v.  Eastland  (Cal.),  1828. 
La  Coursier  v.   Russell    (Wis.),   1263. 
Lacy  v.  Gunn    (Cal.),    1594. 
Lacy  Mfg.   Co.   v.   Los  Angeles  G.    &  E. 

Co.    (Cal.),  91. 
LaFayette   Co.   v.   Wonderly    (Fed.),   269. 
Lahey  v.  Knott   (Ore.),  1439. 
Lake  v.  Loysen  (Wis.),  1088. 
Lamb  V.  Harbaugh    (Cal.),   520. 
Lamb  v.  Licey    (Idaho),    277. 
Lamb  v.  MacMullen   (Cal.),   859,   860. 
Lamb  v.  Taylor    (Md.),    405. 
Lambert     v.  Haskell    (Cal.),   34,   35. 
Lambert  v.  Rice  (Iowa),  271,  1780. 
Lamborn  v.  Watson   (Md.),  1582. 
Land    and    Stock    Co.    v.    Miller    (Mo.). 

1237. 


TABLE  OF  CASES. 


1991 


[References  are  to  pages.] 


Landers  v.  Quincy  etc.  R.  Co.  (Mo.),  146. 

Lane  v.  Tanner   (Cal.),    1593,    1936. 

Langan  v.  City  of  Atchison   (Kan.),  668. 

Lange  v.   Schoettler  (Cal.),  1504. 

Langton  v.  Hagerty   (Wis.),   391. 

Lanitz  v.  King   (Mo.),   177. 

Lantis  v.  Davidson   (Kan.),  1447. 

Lapique,   Ex  parte   (Cal.),   1947. 

Lara  v.  Sandell   (Wash.),  275. 

Larimore  v.  Muller    (Kan.),    1869. 

Largey  v.  Chapman   (Mont.),   729. 

Larimer  v.  Wallace  (Neb.),  1430. 

Larrabee  v.  Baldwin    (Cal.),   616. 

Larson  v.  Berquist    (Kan.),    1458. 

Larson  v.  Metropolitan  St.  R.  Co.   (Mo.), 
1088. 

Lasher  v.   Colton   (111.),   1324. 

Laswell    v.    National    Handle    Co.    (Mo.), 
79. 

Latshaw  v.  McNees   (Mo.),   130. 

Laughlin  v.  Leigh   (Mo.),   108. 

Lawrence  v.  Doolan    (Cal.),    1031. 

Lawrence  v.  Gayetty  (Cal.),  1594. 

Lawrence  V.  Lawrence   (111.),   451. 

Lawrence  v.  Robinson  (Colo.),  809. 

Lawrence  County  v.   Dunkle    (Mo.),    274. 

Lawson  v.  Rush   (Kan.),  728. 

Lawson  v.  Sprague   (Wash.),   63. 

Lawton  v.  City  of  Racine  (Wis.),  270. 

Laying  v.   Mt.   Shasta  M.    S.    Co.    (Cal.), 

1460. 
Leasure  v.  Boie   (Iowa),  1295. 
Leavitt  v.  Morrow  (Ohio),  330. 
Lebanon    M.    Co.    v.    Consolidated   R.    M. 

Co.   (Colo.),  36. 
Le  Breton  v.  Superior  Court  (Cal.),  1820. 
Ledbetter  v.  Ledbetter   (Mo.),   70. 
Lee  v.  Cooley   (Ore.),   405. 
Lee  v.  Figg  (Cal.),  1582. 
Lee  v.  Railroad  (Mo.),  1460. 
Lee  v.  Superior  Court    (Cal.),    881. 
Lee  Doon  v.  Tesh  (Cal.),  814. 
Lefebre  v.  Utter    (Wis.),   759. 
Leggat  v.  Palmer  (Mont),  33,  104,  108. 
Lehew  v.  Brummel   (Mo.),  411. 
Lehman  v.  Farwell   (Wis.),   184. 
Leighton  v.  Grant  (Minn.),  1790. 
LeMay  v.  Missouri  Pacific  R.  Co.   (Mo.), 

145. 
Lemon  v.   Hubbard   (Cal.),   107,   130,   131, 

1935. 
Leon  v.  Galceran    (U.   S.),    843. 
Leonard     v.     American     Steel     etc.     Co. 

(Kan.),   271,   272. 
Leonard  v.  Rogan   (Wis.),   33. 
Leroux  v.  Murdock  (Cal.),  72. 
Letchford  v.  Jacobs    (La.),    1701. 
Leucker  v.  Steileu    (111.),   406. 


Leverone  v.  Weakly  (Cal.),  30. 

Levins  v.  Rovegno    (Cal.),    30. 

Levy  v.  Lyon    (Cal.),    26,    27,    788,    1877, 

1878. 
Levy  v.  McDowell    (Tex.),    1696,    1700. 
Levy  v.  Wolf  (Cal.),  1335. 
Lewis  v.   Lewis   (Minn.),   451. 
Lewis  v.  McDaniel  (Mo.),  391. 
Lewis  v.  Schultz    (Iowa),    274. 
Lewis  v.  Terrell  (Tex.),   274. 
Lewis  v.  Terry   (Cal.),   1743. 
Lewis  v.  Texas  etc.  R.  Co.    (Tex.),   1460, 

1544. 
Lewis  v.  Wabash  R.  Co.   (Mo.),  1460. 
Lewiston  Turnpike  Co.  v.  Shasta  Wagon 

Road  Co.   (Cal.),  747. 
Lexington  R.  Co.  v.  Britton   (Ky.),  1542. 
Lick  v.  Owen  (Cal.),  389. 
Liddell  v.  Landan    (Ark.),    1836. 
Liermann  v.   City  of  Milwaukee    (Wis.), 

747. 
Liese  v.  Meyer   (Mo.),   105,   107. 
Lilly  v.  Tobbein    (Mo.),   226,   227. 
Limekiller     v.     Hannibal     etc.     R.      Co. 

(Kan.),  1502. 
Lincoln  v.  Rowe   (Mo.),   8. 
Lindell  Real  Estate  Co.  v.  Lindell  (Mo.), 

822. 
Linden  v.  Graham    (N.   Y.),   1548. 
Lindsay  v.    Grande    Ronde    Lumber    Co. 

(Ore.),  1276. 
Lipe  v.  Eisenlerd    (N.   Y.),   405. 
Litchenberg  v.  McGlynn   (Cal.),  1030. 
Little  v.  Evans   (Kan.),  1668. 
Little  v.  Harrington   (Mo.),   67,   68. 
Little  v.  Pottawattamie    County    (Iowa), 

108. 
Little  Nell  G.  M.  Co.  v.  Hemby   (Colo.), 

128. 
Little  Rock  etc.    R.   Co.   v.   Dyer   (Ark.), 

245,   246. 
Little  Rock  Trust  Co.  v.   S.  M.   &  A.   R. 

Co.   (Mo.),  79. 
Lloyd  v.  Matthews  (N.  Y.),  1333. 
Locke  v.  Locke    (Cal.),   469. 
Locke  v.  Moulton  (Cal.),  1134. 
Loeffel  v.  Hoss   (Mo.),  274. 
London   etc.   Bank   v.    Bandmann    (Cal.), 

1417. 
London    etc.    Bank   v.    Dexter  H.    &    Co. 

(Fed.),    1417. 
London  etc.  Bank  v.  Parrott  (Cal.),  616. 
Long  v.  DeBevois    (Ark.),    246. 
Long  v.  Johnson   (Iowa),   1460. 
Long  v.  Needham  (Mont.),  1774. 
Long  v.  Newman  (Cal.),  1667,  1671. 
Long  v.  Sullivan   (Colo.),   1430. 
Long  v.  Thompson   (Kan.),   1334. 


y.m 


TABLE  OF  CASES. 
[References  are  to  pages.] 


Longpre  v.  Big  Blackfoot  M.  Co.  (Mont.), 

1460. 
Loop  v.  Litchfield  (N.  Y.),  1248. 
Lord  v.  Lindsay   (N.  Y.),  332. 
Lorillard  v.  Clyde  (N.  Y.),  1263. 
Loring  v.  Illsley   (Cal.),  1836. 
Los  Angeles  v.  Lankershim    (Cal.),   1811. 
Los  Angeles  &  B.  O.  &  D.  Co.  v.  Occi- 
dental Oil  Co.  (Cal.),  1772. 
Los  Angeles  Pressed    Brick   Co.   v.    Hig- 

gins  (Cal.),  948,  1865,  1882,  1883. 
Losee  v.  Clute  (N.  Y.),  1248. 
Lottman  v.  Barnett   (Mo.),   107. 
Loughborough  v.  McNevin  (Cal.),  1417. 
Louisville    etc.    R.    Co.   v.    Chaffin    (Ga.), 

202. 
Louisville    etc.    R.    Co.    v.    Goodykoontz 

(Ind.),   1504. 
Loup     v.     California     Southern     R.     Co. 

(Cal.),   1003. 
Love  v.  Shartzer  (Cal.),  1135. 
Love  v.  Teter   (W.   Va.),   1791. 
Loveday  v.  Parker   (Wash.),    1397. 
Lovejoy  v.  Citizens'    Bank    (Kan.),    1379. 
Lovering  v.  Webb  Pub.  Co.  (Minn.),  144, 

145. 
Loverone  v.  Weakley  (Cal.),  974. 
Lowe  v.  City    of    Guthrie    (Okla.),    1419, 

1430. 
Lowe  v.  Ozmun   (Cal.),  1603. 
Lowe  v.  Ozmun    (Cal.    App.),    589,    1028, 

1931. 
Lowe  v.  Yolo   County   C.   W.    Co.    (Cal.), 

32,   1237,   1238,   1743,   1936. 
Lowenberg  v.  Jeffries    (Fed.),   682. 
Lubbock  v.  McMann    (Cal.),   1179. 
Lubert  v.  Chauviteau   (Cal.),   8. 
Lucas  v.  Rea   (Cal.),   940. 
Luco  v.  DeToro    (Cal.),  822. 
Ludwig  v.  Murphy  (Cal.),  732. 
Lufkin  v.  Curtis  (Mass.),  555. 
Lumpkin  v.  Collier    (Mo.),    107. 
Lumpkin  v.  Williams    (Tex.),    1447. 
Luttermann  v.  Romey   (Iowa),  368,   1864. 
Lutz  v.  District  Court  (Nev.),  893. 
Lux  v.  Haggin  (Cal.),  8,  1223. 
Lycett  v.  Wolf   (Mo.),   176. 
Lycoming  Co.  v.  Rubin  (111.),  1357. 
Lyman  v.  Corwin    (Ark.),   80. 
Lynch  v.  Rome  Co.   (N.  Y.),  1883. 
Lynch  v.  Sweetland  (Cal.),  1591,  1592. 
Lyndonville    Nat.    Bank    v.    Folsom    (N. 

Mex.),  1699. 
Lyman  v.  Lauderbaugh  (Iowa),  1565. 
Lyon  v.  Logan    (Tex.),   69. 
Lyon  v.  Rice  (Conn.),  881. 
Lyon  v.  United  Moderns  (Cal.),  1870. 


Mabury  v.  Ruiz  (Cal.),  729. 

MacDougall  v.  Central     Pacific     R.     Co. 

(Cal.),    1545. 
MacDougall  v.  Maguire  (Cal.),  390. 
Mace  v.  Boedker  (Iowa),  1460. 
Mace  v.  O'Reilly   (Cal.),   1835. 
Mace  v.  Reed    (Wis.),   1492. 
Mackey,   State  ex  rel.,  v.   District  Court 

(Mont.),   1810,  1811,  1826,  1827. 
MacMurray-Judge  Architectural  Iron  Co. 

v.  City  of  St.  Louis  (Mo.),  1668. 
Madera  Irr.  Dist.,  In  re  (Cal.),  1237. 
Madison  v.  Pacific  R.   Co.    (Mo.),   71. 
Magee  v.  Kast   (Cal.),   1278. 
Magee  v.  North     Pacific     Coast    R.     Co. 

(Cal.),    1545. 
Magnus  v.  Woolery   (Wash.),  146. 
Magpie  G.  M.  Co.  v.  Sherman  (S.  Dak.), 

1671. 
Magwire  v.  Tyler  (Mo.),  8. 
Mahon  v.  San    Rafael    T.    R.    Co.    (Cal.), 

236. 
Maier  v.  Freeman   (Cal.),  226. 
Malheur  County  v.  Carter  (Ore.),  35.  650, 

1431. 
Mallinckrodt    Chemical    Works    v.    Nem- 

nich  (Mo.),  1582. 
Mallory  v.  See  (Cal.),  1900. 
Mallory  Com.  Co.  v.  Elwood  (Iowa),  1248. 
Malone  v.  Big  Flat   G.   Min.    Co.    (Cal.), 

953. 
Manning  v.  School  District    (Wis.),   64. 
Manor  v.  McCall  (Ga.),  882. 
Mansur  v.  Botts   (Mo.),  1293. 
Manti     City     Sav.     Bank     v.      Peterson 

(Utah),  1649. 
Marien  v.    Evangelical   Creed   Congrega- 
tion (Wis.),  1157. 
Marinan  v.  Baker  (N.  Mex.),  1S66. 
Marinovich  v.   Kilburn   (Cal.),    1254. 
Markel  v.  Moudy   (Neb.),   1581. 
Markwald  v.  Creditors   (Cal),   1604. 
Marriott  v.  Williams  (Cal.),  362,  367,  368, 

390,  1884. 
Marron  v.  San  Diego  County  (Cal.),  649. 
Marston  v.  Humes  (Wash.),  861. 
Martin  v.  Atchison  (Idaho),  1593. 
Martin  v.  City  of  St.  Joseph   (Mo.),   747. 
Martin  v.  Deetz  (Cal.),  1742. 
Martin  v.  Lutkewitte   (Mo.),  1582. 
Martin  v.  Payne   (N.  Y.),  404. 
Martin  v.  Western       Union       Tel.       Co. 

(Tex.),   1479. 
Maryland      Casualty      Co.      v.      Hudgins 

(Tex.),  69. 
Mason  v.  Gates   (Ark.),  33. 
Masterson  v.  Clark   (Cal.),  1649. 
Mateer  v.  Cockrill  (Tex./,  849. 


TABLE  OF  CASES. 


1993 


[References  are  to  pages.] 


Matoon  v.  Eder  (Cal.),  1622. 

Matson  v.  Port     Townsend     etc.    R.    Co. 

(Wash.),   1870. 
Mathieson   v.    St.    Louis    etc.    Co.    (Mo.), 

36,   1455,  1459. 
Matthiesen  v.  Arata  (Ore.),  162,  951. 
Mau  v.  Stoner   (Wyo.),   1865. 
Mauldin  V.  Cox  (Cal.),  794. 
Maurer  v.  Mitchell   (Cal.),  894. 
Maxwell  v.  Frazier  (Ore.),  226,  1810. 
Maxwell  v.  Sin      Luis      Obispo      County 

(Cal.),   691. 
Mayberry  v.  McClurg   (Mo.),    1447. 
Mayer  v.  Mayer  (Ore.),  1826. 
Mayfield  Woolen   Mills  v.   Lewis    (Ark.), 

682. 
Maynard  v.  Anderson    (N.    Y.),    1417. 
Maynard  v.  Fireman's     Fund     Ins.     Co. 

(Cal.),  389. 
Mayor   etc.    of   Los   Angeles   v.    Signoret 

(Cal.),   35. 
Mays  v.  Cincinnati   (Ohio),   692. 
McAdoo  v.  Sayre  (Cal.),  1156. 
McAuley    v.    Casualty    Co.    of    America 

(Mont.),  105. 
McCann  v.  Lewis  (Cal.),  1397. 
McCarthy  v.  Mt.    Tecarte   L.    &    W.    Co. 

(Cal.),  1853. 
McCarthy  v.  Troll  (Ark.),  1030. 
McCarty  v.  First      National      Bank      (S. 

Dak.),  1294. 
McClatchy  v.  Superior  Court   (Cal.),  499. 
McCloskey  v.  Sweeney   (Cal.),  432. 
McClure  v.  Paducah  Iron  Co.  (Mo.),  1826. 
McCollough  v.  Home   Ins.    Co.    of   N.    Y 

(Cal.),   1339. 
McCollum  v.  Boughton    (Mo.),    1135. 
McCollum  v.  City    of    S.    Omaha    (Neb.), 

669. 
McComb  v.  Reed  (Cal.),  1701. 
McConoughey  v.  Jackson   (Cal.),  31. 
McCool  v.  Mahoney   (Cal.),   1884. 
McCord  v.  McCord  (Wash.),  1447. 
McCormick  v.  Belvin  (Cal.),   1935. 
McCormick  v.  Brown    (Cal.),    274. 
McCracken  v.  San  Francisco  (Cal.),  1335. 
McCraney  v.  McCraney    (Iowa),   497. 
McCray  v.  Galveston  etc.  R.   Co.   (Tex.), 

1864. 
McCrea  v.  Johnson    (Cal.),   1417. 
McCrillis  v.  Howe  (N.  H.),  433. 
McCullough  v.  Insurance  Co.  (Mo.),  1357. 
McDermont  v.  Anaheim    Union    W.    Co. 

(Cal.),   276. 
McDermott  v.  Sedgwick   (Mo.),  333. 
McDonald  v.  Agnew    (Cal.),    1826. 
McDonald  v.  Hanlon   (Cal.),   921. 
McDonald  v.  McDonald   (Cal.),  49S. 


McDonald     v.     Pacific     Debenture     Co. 

(Cal.),   68. 
McDowell  v.  Hyman  (Cal.),  760. 
McEldowney  v.  Madden  (Cal.),  1701. 
McFadden  v.   Santa  Ana  etc.   St.  R.  Co. 

(Cal.),  353,  520. 
McFall  v.  Buckeye  Grangers'  Warehouse 

Assn.    (Cal.),    1699. 
McFarland  v.  Holcomb  (Cal.),  1287. 
McFarland  v.  Matthai     (Cal.),    95,     1119, 

1133,  1825,  1833,  1835,  1907. 
McFeters  v.  Pierson   (Colo.),    814. 
McGehee  v.  Schiffman  (Cal.),  1465,  1542. 
McGindley  v.  Newton  (Mo.),  1582. 
McGinness  v.  Stanfield  (Idaho),  1224. 
McGrath  v.  Carroll   (Cal.),  1030. 
McGuire,  In  re  (Cal.),  411. 
McGuire  v.  Bryant     etc.     Co.     (Wash.), 

1882. 
McHugh  v.  Transit  Co.   (Mo.),  107. 
Mcllroy  v.  Buckner  (Ark.),  71. 
Mclnerney  v.  City  of  Denver  (Colo.),  893. 
Mclnnis  v.  Buchanan   (Ore.),  177. 
Mcintosh  v.  Johnson   (Utah),  1430. 
Mclntyre  v.  Federal  Life  Ins.  Co.  (Mo.), 

69. 
McKay  v.  McKay   (Cal.),  515. 
McKee  v.  Eaton    (Kan.),   246. 
McKee  v.  Rudd   (Mo.),   1864. 
McKeen  v.  Naughton   (Cal.),  269. 
McKeever  v.  Buker  (Kan.),  1671. 
McKenna  v.  Cooper   (Kan.),   1812. 
McKenzie  v.  Mathews   (Mo.),  1884. 
McKinlay  v.  Tuttle   (Cal.),   235. 
McKinney  v.  Roberts  (Cal.),  389. 
McLaughlin  v.  Bascomb    (Iowa),    66. 
McLean  v.  City  of  Lewiston   (Idaho),  30. 
McLean  v.  Crow   (Cal.),   1030. 
McLean  v.  Fleming   (U.  S.),   1613. 
McLeran  v.  Benton  (Cal.),  1032. 
McMahon  v.  Snyder   (Wis.),   1827. 
McMenomy  v.  White    (Cal.),    1430. 
McMillan  v.  Richards   (Cal.),   692. 
McMillan  v.  Vischer  (Cal.),  692. 
McMurtry  v.  Edgerly    (Neb.),    267. 
McNeil  v.  Collinson    (Mass.),   1615. 
McNeil's  Estate,  In  re  (Cal.),  271. 
McNulta  v.  Lochridge  (U.  S.),  231. 
McPherson     v.       Seattle      Electric      Co. 

(Wash.),  1870. 
McPherson  v.  Weston    (Cal.),   33,   183. 
McQuilken    v.    Central     Pacific     R.     Co. 

(Cal.),  1545. 
McRae  v.  Blakeley    (Cal.),    1133. 
McSherry  v.  Penn  Co.    (Cal.),   1821. 
Meade,  Estate  of  (Cal.),  1935. 
Meadowcraft  v.  Walsh   (Mont.),   1397. 
Meadows  v.  Goff   (Ky.),   225. 


1994 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Means  v.  Southern     California     R.      Co. 

(Cal.),   1541. 
Meek  v.  Hurst  (Mo.),  63,  1780. 
Meek  v.  McClure   (Cal.),  692. 
Meeker  v.  Harris   (Cal.),  1594. 
Mehan  v.  City   of   St.    Louis    (Mo.),    145, 

659,  670. 
Meidel  v.  Anthis   (111.),   1616. 
Melone  v.  Ruffino  (Cal.),  1105. 
Memphis  etc.  R.  Co.  v.  Birmingham  etc. 

R.   Co.    (Ala.),   1223. 
Memphis    etc.    R.    Co.    v.    Freed    (Ark.), 

1G04. 
Mendenhall  v.  Davis   (Wash.),   1032. 
Mendenhall  v.  Harrisburg     W.      P.      Co. 

(Ore.),   108. 
Mendocino  County  v.  Lamar  (Cal.),   650. 
Mendocino  County  v.  Morris   (Cal.),   649. 
Mengel  v.  Mengel   (Iowa),   62,   64,   497. 
Mentone   Irrigation   Co.   v.    Redlands   El. 

&  P.  Co.   (Cal.),  70. 
Merced  Bank  v.  Casaccia  (Cal.),   729. 
Merced   Bank  v.    Price    (Cal.),    184,   712, 

1914. 
Mercer  v.  James  (Neb.),  1650. 
Merchant  V.  Pielke  (N.  Dak.),  1S66. 
Merchants  and  Miners'   Bank  v.   Barnes 

(Mont.),   682. 
Merchants    Trust   Co.    v.    Bentel    (Cal.), 

849,   1406. 
Mercier  v.    Travelers'    Ins.    Co.    (Wash.), 

130. 
Merriman  v.  Walton    (Cal.),   33. 
Meskimen  v.  Day  (Kan.),  1133. 
Messenger  v.  Northcutt  (Colo.),  107. 
Mette   &   K.   D.    Co.   v.   Lowrey    (Mont.), 

1288. 
Mexal  v.   Dearborn   (Mass.),   1417. 
Mexican    Mill    v.    Yellow    Jacket    S.    M. 

Co.   (Nev.),  231. 
Meyer  v.  Broadwell    (Mo.),   73. 
Meyer  v.  Insurance  Co.    (Mo.),   79. 
Meyer  v.  Sligh  (Tex.),  1701. 
Meyer  v.  Van  Colem    (Barb.),   7. 
Michel  v.  Tinsley    (Mo.),    275. 
Michell  v.  City  of  Portland   (Ore.),   862. 
Mickle  v.  Heinlen  (Cal.),  329,  1398. 
Mighell  v.  Stone  (111.),  405,  406,  407. 
Millard  v.  Hathaway  (Cal.),  1142. 
Miles  v.  McCallan  (Ariz.),  1885. 
Miles  v.  Withers    (Mo.),  1248. 
Mills  v.  Fletcher   (Cal.),   1135. 
Mills  v.  Hart  (Colo.),  1885. 
Mills  v.  La  Verne  L.   Co.    (Cal.),   1417. 
Mills    Novelty    Co.    v.    Dunbar    (Idaho), 

1646. 
Miller  v.  Abrahamson   (Cal.),   33,    1289. 


Miller  v.  Bay  Cities  W.  Co.   (Cal.),  119], 

1222,  1225. 
Miller  v.  Kehoe  (Cal.),  1900. 
Miller  v.  Murray  (Colo.),   600. 
Miller  v.  Nicodemus   (Neb.),   730. 
Miller  v.  Nuckolls  (Ark.),  1864. 
Miller  v.  Thompson  (Ark.),  1287. 
Miller  v.  Union  Switch  etc.  Co.   (N.  T.), 

1263. 
Miller  &  Lux  v.  Enterprise  C.  &  L.   Co. 

(Cal.),   224,  1205,  1219. 
Miller  &  Lux  v.  Fresno  C.  &  I.  Co.  (Cal.), 

1238. 
Miller  &  Lux  v.  Madera  Canal  &  Irr.  Co. 

(Cal.),   1196,  1214,   1215,  1223,  1224. 
Milliken  v.  Commission   Co.    (Mo.),   36. 
Milliken  v.  Thorndike   (Mass.).    1500. 
Milner   v.    Camden    Lumber    Co.    (Ark.), 

1900. 
Milno    National    Bank    v.    Cobbs    (Tex.), 

1157. 
Mills  v.  Fletcher   (Cal.),   95. 
Mills  v.  Hart   (Colo.),    1S85. 
Minard  v.  McBee   (Ore.),  330. 
Miner  v.  Morgan   (Neb.),  520,  792. 
Miners'    Ditch    Co.    v.    Zellerbach    (Cal.), 

274. 
Minneapolis  Baseball    Co.    v.    City    Bank 

(Minn.),  1118. 
Minneapolis  Harvester   Works   v.    Smith. 

(Neb.),  1367. 
Mirick  v.  Suchy   (Kan.),  1461. 
Missouri  etc.    R.     Co.    v.    Jones     (Tex.), 

1460. 
Missouri  etc.    R.    Co.   v.    Watson    (Tex.), 

1544. 
Missouri  K.    &   T.    R.    Co.    v.    Hutchings, 

Sealy  &  Co.   (Kan.),  34. 
Missouri  Pacific  R.  Co.  v.  Cornell  (Kan.), 

1527. 
Missouri  Pacific  R.  Co.  v.  Dwyer  (Kan.), 

1458. 
Missouri  Pacific      R.      Co.      v.      Johnson 

(Kan.),  1522. 
Missouri  Pacific  R.  Co.  v.  Merrill  (Kan.), 

1527. 
Missouri  Pacific      R.      Co.      v.      Metzger 

(Neb.),  1525. 
Missouri  Pacific      R.      Co.      v.      Metzger 

(Neb.),  1527. 
Missouri  Pacific   R.    Co.   v.    Vandeventer 

(Neb.),  1525. 
Missouri  Valley   B.    &   I.    Co.    v.    Ballard 

(Tex.),  145. 
Mitchel  v.  Gray  (Cal.),  1769. 
Mitchell  v.  Bank    of    St.    Paul    (Minn.), 

200. 
Mitchell  v.  Beckman    (Cal.),   616. 


TABLE  OF  CASKS. 


1995 


[References  are  to  pages. 1 


Mitchell  v.  Colorado  M.  &  E.  Co.  (Colo.), 

x451,  1452. 
Mitchell  v.  Knott  (Colo.),  794. 
Mitchell  v.  Mitchell   (Colo.),   95. 
Milwaukee  G.  E.  Co.  v.  Gordon   (Mont.), 

229. 
Mock  v.  Chaney  (Colo.),  500. 
Mock  v.  City  of  Santa  Rosa   (Cal.),   668. 
Modlin  v.  Jones  &  Co.   (Neb.),  1458. 
Modoc  Co-operative  Association  v.   Por- 
ter (Cal.),  1936. 
Modoc    L.    &    L.    Co.    v.    Superior    Court 

(Cal.),  884,  885,  889,  890,  892,  893. 
Moehlenpah    v.     Mayhew     (Wis.),     1790, 

1802. 
Moellman    v.    Gieze-Henselmeier    L.    Co. 

(Mo.),  129. 
Mohr  v.  Byrne  (Cal.),  1935. 
Molen  et  ux  v.  Orr  (Ark.),  246. 
Monarch  Co.  v.  Wheel  Co.   (Fed.),  1287. 
Monday  v.  St.  Joseph  etc.  Co.   (Mo.),  31. 
Montgomery  v.  Middlemiss  (Cal.),  1901. 
Montgomery  v.  Tutt    (Cal.),    1901. 
Moody  v.  Found   (111.),  1046. 
Mooney  v.  Elder  (N.  Y.),  1333. 
Moore,  Estate  of  (Cal.),  1046. 
Moore  v.  Dixion   (Mo.),  35. 
Moore  v.  Gordon    (Ark.),   822. 
Moore  v.  Renick   (Mo.),  330. 
Moorhouse  v.  Donaca  (Ore.),   1650. 
Moran  v.  Dawes  (N.  Y.),  405. 
Moran  v.  Pullman  Car  Co.  (Mo.),  670. 
Moran  v.  Ross  (Cal.),  974. 
Morbach  v.  Home    Mining    Co.     (Kan.), 

1458. 
More  v.  Calkins  (Cal.),  1147,  1663. 
Morgan  v.  Menzies   (Cal.),  1431. 
Morgan  v.  Mulhall    (Mo.),   1537. 
Morgan  v.  Ross  (Mo.),  407. 
Morgan  v.  Southern  Pacific  R.  Co.  (Cal.), 

1504. 
Morrell  v.  Morgan   (Cal.),  271. 
Morrill  v.  Everson  (Cal.),  1774. 
Morris  v.  Courtney  (Cal.),  65. 
Morris  v.  Hulme   (Kan.),   735. 
Morris  v.  Salt  Lake  City  (Utah),  670. 
Morrison  v.  Boggs   (Neb.),  1430. 
Morrison  v.  Dwyer  (Iowa),  1948. 
Morrison  v.  Morey    (Mo.),   1669. 
Morrow  v.  Barker  (Cal.),  1030. 
Morrow  v.  Superior  Court  (Cal.),  616. 
Morrow  v.  Warner  V.  S.  Co.  (Ore.),  1134. 
Morse  v.  Courtney   (Cal.),   1105. 
Morse  v.  Gilman   (Wis.),   64. 
Morse  v.  Steele  (Cal.),  1030. 
Morse  v.  Stockman   (Wis.),  822. 
Morton  v.  Steward  (111.),  433. 
Moses  v.  Bierling  (N.  Y.),  1333. 


Moses  v.  Kearney  (Ark.),  881. 

Moses  v.  Stevens   (Mass.),   555. 

Mott  v.  Foster  Cal.),  1849. 

Mower  v.  Stickney   (Minn.),   72. 

Mowry  v.  First  Nat.   Bank   (Wis.),   1881, 

1882. 
Moxcey,  In  re  (Kan.),  1866. 
Moyle  v.  Bullene   (Colo.),  36. 
Mt.    Zion    Church   v.    Whitmore    (Iowa), 

1157. 
Muldoon  v.  Lynch  (Cal.),  1743. 
Mullally  v.  Townsend    (Cal.),    32,    1431. 
Mullan  v.  State  (Cal.),  63. 
Mullenary  v.   Burton    (Cal.),   1268. 
Mulligan     v.     Montana     Union     R.     Co. 

(Mont.),  1458. 
Mumper  v.  Kelley   (Kan.),  1780. 
Munchow  v.  Munchow   (Mo.),  129,   176. 
Munday  v.  Vail  (N.  J.),  1810. 
Munford  v.  Keet   (Mo.),   127. 
Municipal    Security    Co.    v.     Baker    Co. 

(Ore.),  1810. 
Munro  v.  Calahan   (Neb.),   1933. 
Munro  v.  King   (Colo.),   177. 
Munro  v.  Pacific  Coast  Dredging  etc.  Co. 

(Cal.),  1502,   1504. 
Murdock  v.  Brooks    (Cal.),   34. 
Murphy  v.  Insurance  Co.   (Mo.),   1357. 
Murphy  v.  Southern  Pacific  Co.    (Nev.), 

1505,   1546. 
Murphy  v.  Stelling    (Cal.),    65,    175,    1242. 
Murray  v.  Gulf  etc.  R.  Co.    (Tex.),   1544. 
Murray  v.  Superior  Court  (Cal.),  893. 
Murray  v.  Thiessen   (Iowa),   3b4. 
Musser  v.  Maynard  (Iowa),  682. 
Mussina  v.  Goldthwaite    (Tex.),    226. 
Mutual    L.    Ins.    Co.    v.    Pacific    F.    Co. 

(Cal.),   1417. 
Myers  v.  Holton   (Cal.),  108,   1329. 
Myers  v.  Sierra  Valley  etc.  Assn.  (Cal.), 

619. 

Nagel  v.  Missouri  etc.  R.  Co.  (Mo.),  1505. 

Nagel  v.  Railway  (Mo.),  1582. 

Nagle  V.  Nagle   (Cal.),    500. 

Naglee  v.  Pacific  Wharf  Co.  (Cal.),  1699. 

Napa  State  Hospital  v.  Dasso  (Cal.), 
435. 

Narramore  v.  Cleveland  etc.  R.  Co. 
(Fed.),  1460. 

Nash  v.  McCathern    (Mass.),    1582. 

Nash  v.  Whitney  (Me.),  682. 

National  Bank  v.  Landis  (Mo.),  1287. 

National  Bank  of  Hailey  v.  Bews  (Ida- 
ho), 1394. 

National  Fertilizer  Co.  v.  Fall  River  etc. 
Bank  (Mass.),  273. 


1996 


TABLE  OF  CASES. 


[References  are  to  pages.] 


National  Handle   Co.  v.   Huffman    (Mo.), 

89,  90. 
National  Ins.     Co.    v.    Sprague     (Colo.), 

1356. 
National  M.  F.  I.  Co.  v.  Duncan  (Colo.), 

73,   1357. 
National  Sav.    Bank    v.    Ward    (U.    S.), 

1248. 
National  S.  &  E.  Works  v.  Wicks  (Mo.), 

37. 
National  Wall    Paper   Co.    v.    McPherson 

(Mont.),  1593. 
Naylor  &  Norlin  v.  Lewiston  etc.  R.  Co. 

(Idaho),  1287,  1288,  1934. 
Nebraska  Children's    H.     Soc.    v.     State 

(Neb.),  1865. 
Needles  v.  Needles   (Tex.),   498. 
Neel  V.  Penn  Co.   (U.  S.),  1822. 
Nehrbas  v.  Central  Pacific  R.  Co.  (Cal.)t 

1545. 
Neiderlander  v.   Starr   (Kan.),   1333. 
Neill  v.  Keese   (Tex.),   1135. 
Neilson  v.  Lee  (Cal.),  1333. 
Nelson  v.  Broadhack   (Mo.),   330. 
Nelson  v.  Harrington    (Wis.),    1471. 
Nelson  v.  Henrichsen    (Utah),   1267. 
Nelson  v.  O'Brien    (Cal.),    1135. 
Neppach  v.  Jones    (Ore.),   276,   277. 
Nerio  v.  Maestretti  (Cal.),  662. 
Ness  v.  Bothell  (Wash.),  1936. 
Neu  v.  McKechnie  (N.  Y.),  1616. 
Nevada  County  C.  Co.  v.  Kidd  (Cal.),  33. 
Neves  v.  Costa  (Cal.),   66,  349,  361. 
Nevin  v.  Gary  (Cal.),  130. 
Newby  v.  Laurence  (Neb.),  1672. 
New  Cache  La  Poudre  Irr.  Co.  v.  Water 

Supply  &  S.  Co.   (Colo.),  1237. 
Newcomb  v.  Railway    (Mo.),    79. 
Newhall  v.  Hatch  (Cal.),  270. 
Newhall  v.  Sherman,   Clay  &  Co.    (Cal.), 

730. 
Newlin  v.  St.    Louis    etc.    R.    Co.    (Mo.), 

1543,   1544. 
Newman  V.  Accident  Assn.    (Ind.),   1357. 
Newman  v.  Freitas    (Cal.),    1774. 
Newman  v.  Trust  Co.  (Mo.),  1582. 
Newmark  v.  Chapman    (Cal.),   1901. 
Newsome  v.  Williams  (Ark.),  1135. 
Newstrom  v.  Turnblad    (Minn.),    1581. 
Newton  v.  Hull   (Cal.),   1780. 
Nicklace  v.  Dickerson  (Ark.),  108. 
Nichols  v.  Dunphy    (Cal.),    1884. 
Nichols  v.  Stevens    (Mo.),   1582. 
Nichols  v.  Trueman   (Kan.),   1934. 
Nicholson  v.  Rogers   (Mo.),  391. 
Nicholson  v.  Tarpey  (Cal.),  1773,  1774. 
Nicoll  v.  Burke    (N.    Y.),    183. 


Niemier  v.   Chicago  etc.   R.   Co.    (Iowa>, 

201. 
Nightingale  v.  Barney  (Iowa),  231. 
Nightingale     v.     Oregon     Cent.     R.     Co. 

(Fed.),   162. 
Nippert  v.  Wameke    (Cal.),    1090. 
Nix  v.  Goodhill   riowa),  1698. 
Nixon  v.   Goodwin   (Cal.),  159,  1824,   1889, 

1890. 
Noble  v.  Blount   (Mo.),   270. 
Noble  v.  Learned  (Cal.),  1025. 
Noe  v.  Christy  (N.  Y.),  1335. 
Nolan  v.  Fidelity  etc.  Co.  (Cal.),  68,  269, 

1424,   1425,   1929. 
Nolan  v.  Hentig  (Cal.),  72. 
Nolton  v.  Western  R.  Co.   (N.  Y.),  61. 
Nord  v.  Boston  etc.  Co.   (Mont.),   1460. 
Norden  v.  Jones   (Wis.),   1030. 
Norman  v.  Poole    (Ark.),   1701. 
Norman  v.  Wells   (N.   Y.),  407. 
North  Pacific  L.  Co.  v.  Lang  (Ore.),  226. 
North    St.     Louis    etc.    Assn.     v.     Obert 

(Mo.),  1263. 
Northern  Pacific  R.  Co.  v.  Hess  (Wash.), 

368,  1545. 
Northern  Pacific  R.  Co.  v.  Pauson  (Fed.), 

1493. 
Northrup  v.  Insurance  Co.   (Mo.),  73. 
Northrup    v.    Mississippi    etc.    Ins.     Co. 

(Mo.),  70. 
Northrup  v.  Wills  (Kan.),  271,  272. 
Noyes,  In  re  (In  re  Wood,  In  re  Geary, 

In  re  Frost),   (Fed.),  1865,  1866. 
Noyes  v.  Schlegel   (Cal.),  182,   1761,   1770, 

1905. 
Nugent  v.  Powell   (Wyo.),   546. 
Nunn  v.  Bird   (Ore.),   1649. 
Nutter  v.  Ricketts  (Iowa),  682. 
Nye  v.  Weiss  (Kan.),  1648. 

O'Brien  v.  Big  Casino  G.   M.   Co.    (Cal.), 

273,  1281,  1911,  1913. 
O'Brien  v.  Colusa  Co.    (Cal.),   691,  .693. 
O'Brien  v.  Quinn  (Mont.),  1565,  1742. 
O'Brien  v.  Transit  Co.    (Mo.),   146. 
O'Connor    v.    Chicago    etc.    Co.     (Iowa), 

1822. 
O'Connor   v.    Virginia   P.    &    P.    Co.    (N. 

Y.),   600. 
O'Connor  v.  Witherby  (Cal.),  1700. 
O'Day  v.  Sanford    (Mo.),    61. 
Ogdensburgh   R.   Co.   v.   Vermont  R.   Co. 

(N.  Y.),  1811. 
O'Haire  v.  Burns  (Colo.),  1669. 
O'Hara  v.  Chicago  etc.  R.  Co.  (111.),  974. 
O'Hara  v.  Parker  (Ore.),  1810. 
Ohm  v.  San  Francisco   (Cal.),  31,  03. 
O'Keefe  v.  Dyer   (Mont.),   1105. 


TABLE  OF  CASES. 


1997 


[References  are  to  pages.] 


Oliphant  v.  Whitney   (Cal.),   1827. 

Oliphint  v.   Mansfield   (Ark.),   246. 

Olmstead,  Estate  of  (Cal.), 1900. 

Olsen  v.  Birch  &  Co.   (Cal.),  843. 

Olson  v.  Osborne   (Minn.),   1821. 

Oleon  v.  Seattle    (Wash.),   974. 

Olson  v.  Snake  River  etc.  Co.   (Wash.), 

130. 
Olston  v.  Oregon    etc.    R.    Co.    (Wash.), 

1500,  1582. 
Omaha  Nat.  Bank  v.  Kiper  (Neb.),  1934. 
Omaha  etc.  T.  Co.  v.  Tabor  (Colo.),  1605. 
O'Neil  v.  Garrett  (Iowa),  1604. 
O'Neil  v.  Magner  (Cal.),  32. 
O'Neill  v.  Adams   (Iowa),   106,   389. 
Orack  v.  Powelson  (Cal.),  793. 
Ord  v.  McKee  (Cal.),  1335. 
Orear  v.  Clough  (Mo.),  1826. 
Oregon  Central  R.  Co.  v.  Scoggin  (Ore.), 

269. 
Oregon  S.   L.   R.   Co.   v.   Yeates    (Idaho), 

691. 
Organ  v.  Memphis  etc.  R.  R.  Co.   (Ark.), 

80. 
Orman  v.  Potter  (Colo.),  79. 
O'Rourke  v.  Finch  (Cal.),  1535,  1878,  1879. 
Osborn  v.  Blackburn  (Wis.),  32. 
Osborn  &  Co.  v.  Poindexter  (Tex.),  146. 
Oshkosh  v.  Manchester  Co.   (Wis.),  1357. 
O'Sullivan  v.  Griffith  (Cal.),  334,  1398. 
Otero  Canal  Co.  v.  Fosdick   (Colo.),   973. 
Otis  v.  Superior  Court   (Cal.),   1866. 
Ottawa,  O.  C.  &  C.  G.  R.  Co.  v.  Larson 

(Kan.),  759. 
Otto  v.  Young  (Mo.),  31,  1105. 
Overend  v.  Superior  Court  (Cal.),  1866. 
Owen  v.  Casey    (Wash.),   331. 
Owen  v.  Frink   (Cal.),  246. 
Owens  v.  Owens    (Tex.),   498. 
Owens  v.   Pomona  L.   &  W.   Co.    (Cal.), 

1935. 
Owens  v.  Thompson  (111.),  1398. 
Owings  v.  Turner  (Ore.),  66. 
Owsley  v.  Matson  (Cal.),  794. 

Pacific  Coast  Co.  v.  Wells  (Cal.),  692. 
Pacific  Fruit  Co.  v.  Coon  (Cal.),  601. 
Pacific  Live  Stock   Co.   v.   Isaacs    (Ore.), 

1604,  1605. 
Pacific   Mutual   Life   Ins.    Co.    v.    Fisher 

(Cal.),   514. 
Pacific  Paving  Co.  v.  Bolton  (Cal.),  176. 
Pacific     Timber     Co.     v.     Windmill     Co. 

(Iowa),   1263. 
Paddock  v.  Somes  (Mo.),  36,  147. 
Paddock-Hawley  Co.  v.  Rice  (Mo.),  849. 
Page  v.  Smith   (Ore.),   650. 


Palais   Du   Costume   Company  v.    Beach 

(Mo.),  1791. 
Palmer  v.   Atchison   etc.    R.    Co.    (Cal.), 

1479. 
Palmer  v.  Clark  (Wash.),  1262. 
Palmer  v.  McMasters    (Mont.),    108. 
Palmer  v.  Oregon  S.  L.  Co.  (Utah),  1605, 

1528. 
Palmer  v.   Schultz   (Wis.),  104. 
Palmer  v.  Waterloo   (Iowa),   108. 
Pappe  v.  Post  (Okla.),  105. 
Paquin  v.  Milliken  (Mo.),  1324. 
Paragoonah    Field   etc.    Co.    v.    Edwards 

(Utah),  1669. 
Park  v.  Chaplin  (Iowa),  1157. 
Park  v.  Detroit  Free  Press  Co.   (Mich.), 

390. 
Park  v.  Richardson   (Wis.),  146. 
Parker  v.  Bethel  Hotel  Co.  (Tenn.),  276. 
Parker  v.  Hayes   (Kan.),   329. 
Parker  v.  Monteith    (Ore.),    396,    405. 
Parkin  v.  Scott  (Eng.),  1549. 
Parkison  v.  Bracken  (Wis.),  1135. 
Parks  v.  Hays  (Colo.),  649. 
Parlin  etc.  Co.  v.  Boatman  (Mo.),  271. 
Parsons  v.  Joseph   (Ala.),  274,   600. 
Patrick  v.  Patrick  (Wis.),  499. 
Patterson  v.  Hayden  (Ore.),  404,  406,  407. 
Paul  v.  Fulton  (Mo.),  200. 
Payne  v.  McKinley  (Cal.),  747. 
Payne  v.  Treadwell    (Cal.),    8,    30,    1133, 

1134. 
Pearce  v.  Foreman  (Ark.),  1106. 
Pearson  v.  Anderburg  (Utah),  231. 
Peck  v.  Booth  (Conn.),  881. 
Peck  v.  Noee  (Cal.),  334,  616,  619. 
Peebles  v.  Pittsburgh   (Pa.),  692. 
Peek  v.  Peek  (Cal.),  520. 
Pekin  Plow  Co.  v.  Wilson  (Neb.),  1604. 
Pelham     v.     Commissioners     of     Finney 

County  (Kan.),  880. 
Pells  v.  People  (111.),  953. 
Pembroke  v.  Logan  (Ark.),  1936. 
Pence  v.  Sweeney  (Idaho),  1701. 
Pendleton  v.  Perkins   (Mo.),   1594. 
Pengelly  v.  Peeler  (Mont.),  71. 
Peninsular  T.  &  F.  Co.  v.  Pacific  S.  W. 

Co.   (Cal.),  730. 
Penn  Mutual  Ins.  Co.  v.  Austin   (U.  8.), 

276. 
Penn    Mutual    L.    Ins.    Co.    v.    Ornauer 

(Colo.),   1356. 
Pennington  v.  Meeks  (Mo.),  391. 
Pennowfsky  v.  Coerver  (Mo.),  1864,  1865. 
Pennoyer  v.  Neff  (U.  S.),  843,  1884. 
Penny  v.  Fellner  (Okla.),  1118. 
People    v.    Bank    of    San    Luis    Obispo 

(Cal.),  160,  628,  630,  632,  1713. 


1998 


TABLE  OF  CASES. 
[References  are  to  pages.] 


People  v.  Beaudry  (Cal.),  747. 

People  v.  Carrington  (Utah),  1865. 

People  v.  Church   (111.),  1822. 

People  v.  Collins  (Cal.),  390. 

People  v.  Curtis   (Idaho),  72. 

People  v.  Dashaway  Assn.    (Cal.),  833. 

People  v.  De  Pelanconi  (Cal.),  650. 

People  v.  Gold  Run  D.  &  M.  Co.   (Cal.), 

747. 
People  v.  Haggin  (Cal.),  650. 
People  v.  Jefferds  (Cal.),  1869. 
People  v.  Kingston   (N.   Y.),   882. 
People  v.  Kuhlman    (Cal.),    1866. 
People  v.  Martin   (N.  Y.),   881. 
People  v.  May  (Colo.),  880. 
People  v.  McCue  (Cal.),  30. 
People  v.  McKenna  (Cal.),  1594. 
People  v.  News-Times  Pub.  Co.   (Colo.), 

1866. 
People  v.  Northern    Central   R.    Co.    (N. 

Y.),  881. 
People  v.  Oakland  W.  F.  Co.   (Cal.),  632, 

747. 
People  v.  Reclamation  Dist.    (Cal.),  1811. 
People  v.  Stacy   (Cal.),   200. 
People    v.    State    Board   of    Equalization 

(Colo.),  879. 
People  v.  Stoddard  (Colo.),  834. 
People  v.  Supervisor   (Cal.),   894. 
People  v.  Swift  (Cal.),  1335. 
People  v.  Truckee  L.  Co.  (Cal.),  632,  747. 
People     ex     rel.     Alexander    v.     District 

Court  (Colo.),  893. 
People      ex      rel.      Attorney-General      v. 

Roach  (Cal.),  984. 
People  ex  rel.  Attorney-General  v.  Stan- 
ford  (Cal.),   834. 
People  ex  rel.  Daniels  v.  Henshaw  (Cal.), 

833. 
People  ex  rel.  Daniels  v.  Henshaw  (Cal.), 

907. 
People  ex  rel.  Davidson  v.  Perry  (Cal.), 

833. 
People  ex  rel.  Dickson  v.  Clayton  (Utah), 

834. 
People     ex     rel.     Hinckley     v.     District 

Court  (Colo.),  893. 
People    ex    rel.    Normal    School   v.    Stat* 

Board  of  Equalization  (Colo.),  880. 
People    ex    rel.    Pauls    v.    District    Court 

(Colo.),  893. 
People    ex   rel.    Pierce   v.    Morrill    (Cal.), 

246. 
People  ex  rel.  Williams  v.   Ried   (Colo.), 

893. 
People's  Bank  v.  Stewart  (Mo.),  73,  128, 
329.   1404. 


People's  Bank  of  New  Orleans  v.  Scalzo 

(Mo.),   129. 
People's  B.     &     L.     Assn.     v.     Gillmore 

(Neb.),  272. 
People's  D.  Co.  v.  *76  L.  &  W.  Co.  (Cal.), 

244. 
Pepper   v.    Southern    Pacific    Co.    (Cal.), 

1504. 
Perego  v.  White  (Tex.),  794. 
Perez  v.  San  Antonio  etc.  R.  Co.  (Tex.), 

1544. 
Perkins  v.  Baer  (Mo./,  244. 
Perkins  v.  Brock  (Cal.),  72. 
Perot  v.  Cooper   (Colo.),  330. 
Peters  v.  St.    Louis    etc.    R.    Co.    (Mo.), 

1810. 
Peterson  v.  Crosier  (Utah),  67,  406. 
Peterson  V.  Dillon   (Wash.),   1865. 
Peterson  v.  Hopewell   (Neb.),   1293. 
Peugh  v.  Davis   (U.  S.),   730. 
Pfister  v.  Milwaukee     Free      Press      Co. 

(Wis.),  389,  390,  391,  392. 
Pfister  v.  Wade  (Cal.),  72. 
Phelps  v.  Brown  (Cal.),  1105. 
Phelps  v.  Owens   (Cal.),   1396. 
Phenix  v.  Bijelich   (Nev.),  1885. 
Phenix  Co.  v.   Pickel   (Ind.),   1357. 
Phoenix    Assurance    Co.    v.    Deavenport 

(Tex.),  170. 
Phoenix    Ins.    Co.    v.    Hamilton    (U.    S.), 

1324. 
Philadelphia  W.  &  B.  Co.  v.  Quigley  (U. 

S.),  3S9. 
Philbin   v.    Denver     City     Tramway    Co. 

(Colo.),  1527,  1528,  1529. 
Phillips  v.  Evans   U>io.),   130. 
Phillips  v.  Hagart  (Cal.),  95,  1134,  1135. 
Phillips  v.  xvlaham  (Mo.),   274. 
Phillips  v.  Mann  (Ky.),  368. 
Phillips  v.  Pennywit  (Ark.),  1324. 
Phillips  v.  Price   (Cai.),   1593,  1594. 
Phillips  v.   Smith   (Ariz.),   1582. 
Phillips  v.  Welch   (Nev.),   893. 
Phinney  v.   Phinney   (Me.),  734. 
Pico  v.  Cuyas   (Cal.),   1901. 
Pierce  v.  Great  Falls  etc.  R.  Co.  (Mont.), 

1493. 
Pierce  V.  Merrill   (Cal.),   274. 
Pierce  v.  Waller  (Tex.),  S62. 
Pierce  v.  Whiting  (Cal.),  32,  1431. 
Piercy  v.  Sabin  (Cal.),  1398. 
Pierson  v.  Truax   (Colo.),  1669. 
Pilz  v.  Killingsworth   (Ore.),   162,   951. 
Pineland  Mfg.  Co.  v.  Guardian  Trust  Co 

(Mo.),   65. 
Pinney  v.  Nelson  (U.  S.),  619. 
Pioneer  S.  &  L.  Co.  v.  Eyer  (Neb.),  272 
Pittelkow  v.  Herman  (Wis.),  1672. 


TABLE  OF  CASES. 
[References  are  to  pages.] 


1999 


Pittoek  v.  Buck  (Idaho).  1701. 
Pittsburgh     etc.     R.     Co.     v.     Reynolds 

(Ohio),   1493. 
Platz  v.  Cohoes  (N.  Y.),  520. 
Plummer  v.  Weil    (Wash.),   1853. 
Plunkett  v.  State  National  Bank  (Ark.), 

63,  1S36. 
Polack  v.  Shafer  (Cal.),   1901. 
Polheim  v.  Meyers  (Cal.),  177. 
Polk  v.  James  (Ga.),  882. 
Pollard  v.  Lyon  (U.  S.),  391. 
Pollock  v.  National  Bank  (N  .T.),  601. 
Pomeroy  v.  Fullerton   (Mo.),  62. 
Pomeroy    v.    Rocky    Mountain    Ins.    etc. 

Inst.  (Colo.),  1355. 
Poor  v.  Madison  R.  P.  Co.   (Mont.),  1542, 

1544. 
Pool  v.  Sanford  (Tex.),  35,  225,  226. 
Poorman  v.  Mills  (Cal.),  1397. 
Porter  v.  Arrowhead  R.  Co.   (Cal.),  1287. 
Porter  v.  Illinois  Southern  R.  Co.    (Mo.), 

65,  129. 
Porter  v.  Lassen  Co.  L.  &  C.  Co.   (Cal.), 

1335. 
Porter  v.  Pecos  etc.  R.  Co.  (Tex.),  61. 
Port  Townsend  v.  Lewis  (Wash.),  1869. 
Post  v.  Campbell  (Wis.),  108. 
Post  v.  Davis  (Kan.),  1118. 
Postal    Tel.    etc.    Co.    v.    Harriss    (Tex.), 

36,   145. 
Poteet  v.   Blossom  O.   &   C.   Co.    (Tex.), 

1540,  1541. 
Potlatch   L.   Co.   v.   Runkel    (Idaho),   225, 

1701. 
Poulson  v.  Colliep  (Mo.),  35. 
Powder  River  L.  S.  Co.  v.  Lamb  (Neb.), 

334. 
Powell  v.  Crawford    (Mo.),    390. 
Powell  v.  Gott  (Mo.),  130. 
Powers  v.  Braly  (Cal.),  1827. 
Pownell  v.  Hall  (Cal.),  735. 
Pratt  v.  Taunton    C.    Mfg.    Co.    (Mass.), 

601. 
Prewitt  v.  Wilson   (Iowa),  391. 
Prey  v.  Stanley   (Cal.),   246. 
Price  v.  Citizens  State  Bank  (Okla.),  728. 
Price  v.  Doyle   (Minn.),  951. 
Price  v.  Greer  (Ark.),  107. 
Price  v.  Hallett  (Mo.),  270. 
Price  v.  Metropolitan    S.    R.    Co.    (Mo.), 

1493,  1543. 
Price  v.  Mining  Co.   (Mo.),  70. 
Price  v.  Texas  R.  D.  Co.  (Tex.),  270. 
Priest  v.  Deaver  (Mo.),  1263. 
Prince  v.  Lamb  (Cal.),  1774. 
Prince  v.  Lynch  (Cal.),  619. 
Providence       Jewelry      Co.      v.      Crowe 
(Minn.),   1578,   15S3. 


Prunty  v.    Consolidated     Fuel     etc.     Co. 

(Kan.),  71. 
Puckett  v.    National   Ann.   Assn.    (Mo.), 

1263. 
Pugmire     v.     Diamond     Coal     etc.     Co. 

(Utah),  1503. 
Pullis  v.  Somerville   (Mo.),  36,   1295. 

Quarton  v.  American  Law  Book  Co. 
(Iowa),  1263,  1287. 

Race  v.  Oldridge  (111.),  403. 

Racouillat  v.   Rene   (Cal.),   129. 

Radich  v.  Hutchins  (U.  S.),  691. 

Rafferty  v.  Davis  (Ore.),  269,  1135. 

Raiche  v.  Morrison  (Mont.),  1255. 

Railroad  Commissioner  of  Texas  v.  Gal- 
veston Chamber  of  Commerce  (Tex.j, 
691. 

Railway  Co.  v.  Fire  Assn.  (Ark.),  271. 

Raisor  v.  Chicago  etc.  R.  Co.   (111.),  1504. 

Raley  v.  Umatilla  County  (Ore.),  1791. 

Ralston  v.  Bank  of  California  (Cal.),  600. 

Ramirez  v.  Main  (Ariz.),  1290. 

Ramp  v.  Metropolitan  Street  R.  Co. 
(Mo.),   1544. 

Ramsey  County  Commrs.  v.  Brisbin 
(Minn.),  64. 

Ramsey  v.  Johnson  (Wyo.),  181. 

Rand  v.  Walker  (U.  S.),  201. 

Randall  v.  Duff  (Cal.),  244,  734. 

Randall  v.  Fox   (Ariz.),   1882,   1885. 

Randolph  v.  Kraemer  (Cal.),  1811. 

Rankin  v.  Ekel  (Cal.),  693. 

Rape  v.   Heaton   (Wis.),  32. 

Ray  v.  Hogeboom  (N.  Y.),  682. 

Raymond  v.  Blancgrass  (Mont.),  64. 

Raymond  v.  Railway  Co.    (Ohio),   127. 

Raynor  v.  Drew  (Cal.),  734. 

Reading  v.  Reading   (Cal.),   498. 

Read's  Admrs.  v.  Cramer  (N.  J.),  1790. 

Reardon  v.  San  Francisco  (Cal.),  670. 

Reaves  v.  Oliver  (Okla.),   1671. 

Reaves  v.  Territory    (Okla.),    747. 

Reavis  v.  Cowell  (Cal.),  162. 

Reay  v.  Heazelton  (Cal  ),  1827. 

Reclamation     Dist.     v.     Phillips     (Cal  ) 
1237. 

Reclamation  Dist.  v.  Sherman  (Cal.), 
1237,   1936. 

Redfield  v.  Oakland  Cons.  St.  R.  Co. 
(Cal.),  433. 

Redemeyer  v.  Henley  (Cal.),  1366. 
Redington  v.  Redington  (Colo.),  499. 

Redmond  v.  Peterson  (Cal.),  440. 
Redwood  City  Salt  Co.  v.  Whitney  (Cal.), 

66,  1283. 
Reece  v.  Roush  (Mont.),  1135. 


2000 


TABLE  OF  CASES. 


[References  are  to  pagfes.] 


Reed  v.  Muscatine  (Iowa),,  62. 

Reed  v.  Northfield  (Mass.),  403. 

Reed  &  Co.  v.  Harshall  (Cal.),  269,  333. 

Rees  v.  Cupp  (Ind.),  406. 

Rees  v.  Storms  (Minn.),  127. 

Reformed    Dutch    Church   v.    Brown    (N. 

Y.),   1263. 
Rego  v.  Van  Pelt  (Cal.).  1133. 
Reidy  v.  Scott  (Cal.),  1285. 
Reifschneider  v.   Beck   (Mo.),   1870. 
Reiley  v.  Timme  (Wis.),  391. 
Reinhart  v.  Lugo   (Cal.),  822. 
Reliance  M.  Ins.  Co.  v.  Sawyer  ^Mass.), 

272. 
Remington  v.  Cole  (Cal.),  1430. 
Remmers    v.    Remmers     (Mo.),     45,    184, 

1554. 
Remy  v.  Olds   (Cal.),  32,  1237. 
Renfro  v.  Fresno  City  R.  Co.  (Cal.),  1484. 
Revalk  v.  Kraemer  (Cal.),  1179. 
Reynolds  v.  Hosmer  (Cal.),  1396. 
Reynolds  v.  Jourdan   (Cal.),   1287. 
Reynolds  v.  Lincoln   (Cal.),   80,   1157. 
Rhinebart  v.  Whitehead  (Wis.),  368. 
Rhodes  v.  Holladay-Klotz  Co.    (Mo.),  36. 
Rhodes  v.  Hutchins   (Colo.),   1367. 
Rice  v.  Bush  (Colo.),  1885. 
Rice  v.  Savery  (Iowa),  1335. 
Rice  v.  Whitmore  (Cal.),  760. 
Richards  v.  Gaskill  (Kan.),  1648. 
Richardson  v.  Bricker  (Colo.),  274. 
Richardson  v.  Hittle  (Ind.),  332. 
Richardson  v.  Loupe  (Cal.),  433. 
Richey  v.  Haley   (Cal.),   1565,  1640. 
Richter  v.  Jerome  (U.  S.),  201. 
Riciotto  v.  Clement  (Cal.),  1649. 
Rickey  L.  &  C.  Co.  v.  Glader  (Cal.),  1182, 

1221. 
Rider  v.  Brown   (Okla.),  881. 
Rife  v.  Reynolds  (Mo.),  64. 
Riley  v.  Norman  (Ark.),  80. 
Riley  v.  Pearson   (Ore.),  35. 
Riley  v.  Township    of    Garfield     (Kan.), 

880. 
Rinard  v.  Railroad  (Mo.),  146. 
Rio  Grande  County  v.  Phye  (Colo.),  649. 
Rippee  v.  Railroad  (Mo.),  107. 
Rippstein  v.  Insurance  Co.  (Mo.),  68. 
Risley  v.  Gray  (Cal.),  331. 
Roach  v.  Richardson  (Ark.),  108. 
Roanoke  St.  R.  Co.  v.  Hicks  (Va.),  1773. 
Robb  v.  Dobrinski  (Okla.),  1649. 
Robb  v.  Vos  (U.  S.),  1583. 
Robbins  v.  Butler  (Colo.),  1853. 
Robbins  v.  Deverill  (Wis.),  200. 
Roberts  v.  Colorado   Springs   etc.   R.    Co. 

(Colo.),  1885. 
Roberts  v.  Neale   (Mc),  <S2.  \1K<>. 


Roberts  v.  Taylor  (Neb.),  1615. 
Robertson,  Ex  parte  (Tex.),  893. 
Robertson  v.  Bell  (Kan.),  1003.  t 

Robinson  v.  Brinson  (Tex.),  730. 
Robinson  v.  Grant  (Iowa),  66. 
Robinson  v.  Hall  (Kan.),  792. 
Robinson  v.  Kindley    (Kan.),   1333. 
Robinson  v.  Levy  (Mo.),  35,  129,  1810. 
Robinson  v.  Powers  (Ind.),  406,  407. 
Robinson  v.  Robinson    (Cal.),   497. 
Robinson  v.  Superior   R.    T.    Co.    (Wis.), 

1743. 
Robinson  v.  Templar  Lodge,   I.   O.   O.   F. 

(Cal.),  1263. 
Robinson  v. Western  Pacific  R.  Co.  (Cal.), 

1545. 
Roby    v.     Shunganunga    Drainage    Dist. 

(Kan.),  1237. 
Roche  v.  Baldwin  (Cal.),  1003. 
Roddy  v.  Missouri  Pacific  R.   Co.    (Mo.), 

1248. 
Rodgers  v.  Insurance  Co.   (Mo.),  1357. 
Rodigues  v.  Trevino  (Tex.),  1701. 
Rogers  v.  Cherrier  (Wis.),  682. 
Rogers  v.  Duff    (Cal.),    1333. 
Rogers  v.  Duhart  (Cal.),  759. 
Rogers  v.  Kimball   (Cal.),  330,   1409. 
Rogers  v.  Omaha  Hotel  Co.  (Neb.),  1417. 
Rogers  v.  Rogers  (N.  Y.),  201. 
Rohrer  v.  Babcock  (Cal.),  1021,  1666. 
Rollins  v.  Denver  Club  (Colo.),  1434. 
Rooney  v.  Gray  Bros.  (Cal.),  67. 
Roose  v.  Perkins  (Neb.),  1616. 
Root  v.  Butte  etc.  R.  Co.  (Mont.),  1742. 
Roots  v.  Merriwether  (Ky.),  334. 
Roscoe  v.  Metropolitan  St.  R.  Co.   (Mo.), 

1543. 
Rose  v.  Rose  (Cal.),  499,  514. 
Rosenberg  v.  Durfree  (Cal.),  425. 
Rosencrantz  v.  Rogers  (Cal.),  235. 
Rosenthal  v.  Ogden  (Neb.),  1270. 
Ross  v.  Cornell   (Cal.),  1324. 
Ross  v.  Craven  (Neb.),  334. 
Ross  v.  Mineral  Land  Co.  (Mo.),  107. 
Rothmiller  v.  Stein  (N.  Y.),  1582. 
Rough  v.  Breitung  (Mich.),  272. 
Roussin  v.  Stewart  (Cal.),  1153. 
Rowe  v.  Blake  (Cal.),  33. 
Rowell  v.   Smith   (Wis.),   499. 
Rubio  Canon  L.   &  W.   Assn.  v.   Everett 

(Cal.),  788. 
Rudolph  v.  Saunders  (Cal.),  1699. 
Rugg  v.  Lemley  (Ark.),  33. 
Ruiz  v.  Norton   (Cal.),  183. 
Rumping  v.  Rumping  (Mont.),  498,  499. 
Rundhtry   r.    1Bo1'djS""     'Oal.V     »sn      sb» 

1S5i. 


TABLE  OF  CASES. 


2001 


[References  are  to  pages.] 


Ruppel    v.    United    R.    of   San    Francisco 

(Cal.),  1504. 
Russell  v.  Chamberlain    (Idaho),   355. 
Russell  v.    Chicago  etc.   R.    Co.    (Mont.), 

1937. 
Russell  v.  Railroad  Co.  (Mo.),  1883. 
Russell  v.   Whipple  (N.  Y.),  1397. 
Russell  v.  Wilson    (Iowa),   1671. 
Rutenbeck  v.  Hohn  (Iowa),  602. 
Ryan  v.  North  Alaska  S.  Co.   (Cal.),  32. 
Ryder-Gougar  Co.  v.  Garretson  (Wash.), 

31,  106. 
Ryer  v.  Fletcher  R.  Co.    (Cal.),  822. 

Sabine  v.  Fisher  (Wis.),  433. 
Sachsel  v.  Farrar  (111.),  226. 
Sage  v.  Culver  (N.  Y.),  64. 
Saint  v.  Guerrerio  (Colo.),  1224. 
Salisbury  v.  Barton  (Kan.),  1604. 
Sallee  v.  St.  Louis  (Mo.),  670. 
Salmon  v.  Hoffman  (Cal.),  1335. 
Salmon  v.  Mills   (Fed.),   SO. 
Salmon  v.  Rathjens   (Cal.),   1503. 
Sampson  v.  Ohleyer  (Cal.),   1901. 
Samson  v.  Greenough   (Iowa),   1615. 
San  Benito  Co.  v.  Whitesides  (Cal.),  747. 
San  Bernardino  Inv.  Co.  v.  Merrill  (Cal.), 

601. 
Sanderson  v.  Billings  Water  Co.  (Mont.), 

1532. 
San  Diego  v.  Riverside  (Cal.),  649. 
San  Diego   Bank  v.  Goodsell   (Cal.),   822. 
Sandovial  v.  Randolf  (Ariz.),   1935. 
San  Francisco  v.  Ford   (Cal.),   693. 
San  Francisco      Breweries      v.      Schurtz 

(Cal.),  1334. 
San  Francisco  etc.  R.  Co.  (Cal.),  1938. 
San  Joaquin  etc.   C.   &   I.    Co.   v.   Fresno 

F.  &  I.  Co.  (Cal.),  1238. 
San  Jose  v.  Fulton   (Cal.),  1901. 
San  Jose    S.    D.    B.    v.    Bank    of   Madera 

(Cal.),  730. 
Sannoner  v.  Jacobson  (Ark.),  33. 
San  Pedro     Lumber     Co.      v.      Reynolds 

(Cal.),   582. 
Santa  Rosa  Bank  v.  Paxton  (Cal.),  30,  34. 

1288. 
Sargent  v.  Union  Fuel  Co.    (Utah),   1503. 
Sargent  v.  Wilson   (Cal.),  729. 
Satterberg    t.    Minneapolis    etc.    R.    Co. 

(N.   Dak.),   202. 
Sauter  v.  Leveridge  (Mo.),  107,  1396. 
Savage  v.   Salem  Mills  Co.   (Ore.),  1251. 
Savings  Bank  v.  Burns  (Cal.),  34. 
Savings  Bank  v.   Central  Market   (Cal.), 

735. 
Sayles  v.  Central  Nat.  Bank  (N.  Y.),  600. 
Say  ward  v.  Houghton  (Cal.),  1773. 


Scammon  v.  Denlo   (Cal.).   1003. 
Scarborough  v.  Smith  (Kan.),  822. 
Scaritt    Estate    Co.    v.    Schmelzer    Arms 

Co.    (Mo.),   89. 
Schaad  v.  Robinson  (Wash.),  730. 
Schade  v.  Connor  (Neb.),  432. 
Schaufele  v.  Doyle  (Cal.),  670. 
Schecter  v.  White  (Colo.),  36. 
Schedel,  In  re  (Cal.),  1935. 
Scheerer  &  Co.  v.  Deming  (Cal.),  1857. 
Schemerhorn  v.  Jenkins  (N.  Y.),  433. 
Schilling  v.  Roominger  (Colo.),  33. 
Schillinger   Bros.    &    Co.    v.    Bosch-Ryan 

Grain  Co.   (Iowa),  91. 
Schillinger  etc.  Co.  v.  Arnott  (N.  Y.),  953. 
Schmidt  v.  Brieg  (Cal.),  276. 
Schmidt  v.  Chittenden  (Cal.),  781. 
Schneider  v.  Market  Street  R.  Co.  (Cal.), 

1496,  1506,  1546,  1858,  1876. 
Schnitzier  v.   Fourth  Nat.   Bank   (Kan.), 

1447. 
Schoeffler  v.   Schwarting  (Wis.),  1671. 
Scholl  v.  Grayson    (Mo.),   1742. 
Schomberg  v.  Walker  (Cal.),  389,  391. 
Schreiner  v.  Grant  Brothers  (Cal.),  1460. 
Schroder  v.  Montana  Iron  Works  (Mont.), 

1459,  1544. 
Schultheis  v.  Nash  (Wash.),  1827. 
Schuyler  Nat.  Bank  v.  Gadsden   (U.   S.), 

1294. 
Schwah  v.  Railroad  (Mo.),  107. 
Schwerdtle   v.    County   of   Placer    (Cal.) 

30. 
Scott  v.  Armstrong  (U.  S.),  1135. 
Scott  v.  Frost   (Colo.),   1852. 
Scott  v.  Wood  (Cal.),  72. 
Scovill  v.  Glasner  (Mo.),  105,  107. 
Scrivani  v.  Dondero  (Cal.),  1870. 
Scroggs  v.  Tutt   (Kan.),   1029. 
Scroufe  v.  Clay  (Cal.),  1397. 
Scudder  v.  Atwood  (Mo.),  73. 
Scuny  v.  Porter  (Kan.),  1648. 
Seamans  v.  Temple  Co.   (Mich.),  272. 
Sears  v.  Starbird    (Cal.),    1287. 
Seaton  v.  Grimm   (Iowa),  616. 
Seattle  C.  Co.  v.  Haley  (Wash.),  35. 
Seattle  etc.  R.  Co.  v.  Bowman   (Wash.), 

225,   599. 
Seay  v.  Sanders  (Mo.;,  1810. 
Seebach  v.  Kuhn  (Cal.),  1094. 
Seip  v.  Tilgham   (Kan.),  246. 
Sellars  v.  Foster  (Neb.),  1616. 
Sellick  v.  DeCarlow   (Cal.),   1900. 
Sellman  v.  Wheeler  (Md.),  368. 
Senn  v.  Connelly  (S.  Dak.),  1401,  1820. 
Senter  v.  Davis  Cal.),  1773,  1774. 
Senter  v.  De  Bernal  (Cal.),  1935. 


2002 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Serensen  v.   Northern     Pacific     R.     Co. 

(Fed.),   203. 
Serry  v.  Curry  (Neb.),  519. 
Settlemire  v.  Newsome  (Ore.),  735. 
Severns  v.  English  (Okla.),  1664,  1671. 
Seyfried  v.  Knoblauch  (Colo.),  1089,  1090. 
Seymour  v.  Shea  (Iowa),  329. 
Shandy  v.  McDonald   (Mont.),   1601. 
Shannon  v.  Austin   (Mo.),  274. 
Shakespear  v.  Smith  (Cal.),  244. 
Sharon  v.  Sharon   (Cal.),   515,   1932,  1935, 
Sharp  v.  Bowie  (Cal.),  1774. 
Sharp  v.  McColm   (Kan.),   729,  1811. 
Shattuck  v.  Myers  (Ind.),  407. 
Shattuck  &  Desmond  W.  Co.  v.  Gillelen 

(Cal.),   609,  613. 
Shaw  v.  Proffit  (Ore.),  1238. 
Shawnee  L.  &  P.   Co.  v.   Sears   (Okla.), 

31. 
Shawnee  Tire  Ins.  Co.  v.  Knerr   (Kan.), 

170. 
Shearer  v.  Guardian     Trust     Co.     (Mo.), 

1884. 
Shearer  v.  Weaver  (Iowa),  546. 
Shedoudy  v.  Spreckels      Bros.      C.      Co. 

(Cal.),  101,   1599. 
Sheehan  v.  Pierce   i.N.  Y.),   390. 
Sheerer  v.  Deming   (Cal.),   947. 
Sheibley  v.  Fales   (Neb.),  391. 
Sheibley  v.  Nelson   a\T3b.),  390,  391. 
Shepherd  v.  Padgitt  (Mo.),  1248. 
Shelby  County  v.  Simmonds  (Iowa),  200. 
Sheldon  v.  Atki'son   (Kan.),  1133. 
Sheldon  v.  Steamship  Uncle  Sam   (Cal.), 

368. 
Shelley  v.  Smith    (Iowa),   1780. 
Shelton  v.  Berry  (Tex.),  1850. 
Shemwell  v.  McKinney  (Mo.),  1S64,  1865. 
Sherman       v.       County       Commissioners 

(Colo.),   1669. 
Sherman       N.       Co.       v.       Aughenbaugh 

(Minn.),  272. 
Sherwood  v.  Wallin  (Cal.),  266,  598,  1811. 
Shinn  v.  Guy  ton  &  H.  M.  Co.    (Mo.),  79. 
Shinnick  v.  Marshalltown  (Iowa),  274. 
Shively  v.  Eureka  T.  G.  Min.  Co.   (Cal.), 

601. 
Shively    v.    Semi-Tropic     L.     &    W.    Co. 

(Cal.),  1105. 
Shoemaker  v.  Acker  (Cal.),  1742. 
Shoning  v.  Coburn    (Neb.),   1427,   1428. 
Shopbell  v.  Boyd   (Cal.),   1573,   1574,  1579. 
Shuler  v.  Allam   (Colo.),   1885. 
Shuler  v.  Railroad  Co.  (Mo.),  146. 
Shuster  v.  Overturf    (Kan.),   1932. 
Sichler  v.  Look    (Cal.),    1901. 
Sierra  Co.  v.  Butler  (Cal.),  649,  747. 


Sierra   L.    &    C.    Co.    v.    Brlcker    (Cal.), 

1245. 
Sierra    Union    W.     &    M.    Co.    v.   Wolff 

(Cal.),  1899. 
Sievers  v.  Root  (Cal.),  670. 
Sifton  v.  Sifton  (N.  Dak.),  510. 
Sigel-Campion  etc.  Co.  v.  Holly  (Colo.), 

1604,  1605. 
Silva  v.  Blair  (Cal.),  1118,  1853. 
Silver     Camp     Mining     Co.     v.     Dickert 

(Mont.),   1773,   1810. 
Simon  v.  Calfee  (Ark.),  69. 
Simonson  v.  Burr  (Cal.),  1179. 
Simpson  v.  First  Nat.  Bank   (Fed.),   730. 
Simpson  v.  Remington  (Idaho),  72. 
Simpson  v.  Simpson    (.Cal.),    792. 
Simpson    etc.    Furniture    Co.    v.    Moore^ 

(Ark.),  162. 
Sims  v.   New  York  College   (N.  Y.),   433. 
Singer  v.  Cavers  (Iowa),  66. 
Singer  Piano  Co.  v.  Walker  (Iowa),  730. 
Sinnett  v.  Moies  (Iowa),  1671. 
Sioux  City  v.  Railway  (Iowa),  270. 
Sisk  v.  Caswell   (Cal.),  1236. 
Siskiyou    County    Bank    v.    Hoyt    (Cal.), 

1831. 
Siter  v.  Jewett  (Cal.),   72. 
Sixth  District  A.  Assn.  v.  Wright  (Cal.), 

791. 
Skinner  v.  Beatty  (Cal.),  1901. 
Skinner  v.  Knickrehm  (Cal.),  226,  432. 
Skyrme  v.  Occidental  M.  etc.  Co.  (Nev.), 

1417. 
Slafter  v.  Concordia  F.  I.  Co.   (Iowa),  61, 

62,   66,   1355,   1357. 
Slattery  v.  Hall  (Cal.),  1396. 
Slaughter  v.  Railroad  (Mo.),  1742. 
Sloan  v.  Edwards  (Md.),  368. 
Sloane   v.    Southern     California     R.     Co. 

(Cal.),  1492. 
Sloman  v.  Great  Western  R.  Co.  (N.  Y.)» 

183. 
Smalley  v.  Taylor  (Tex.),  226. 
Smalley  v.  Yates   (Kan.),   880. 
Smart  v.  Haring   (N.  Y.),   433. 
Smith  v.  Allen   (Tex.),  226. 
Smith  v.  Appleton    (Wis.),   1671. 
Smith  v.  Atkinson   (Colo.),  668. 
Smith  v.  Babcock  (Fed.),  1790. 
Smith    v.     Billings    Sugar    Co.     (Mont  ), 

1262. 
Smith  v.  Chiles   (Tex.),   1398. 
Smith  v.  Clyne  (Idaho),  1827. 
Smith  v.  Cumins  (Iowa),  1S83. 
Smith  v.  Dragert    (Wis.),   104. 
Smith  v.  Fairchild   (Colo.),  1333. 
Smith  v.  Griswold  (Iowa),  1582. 
Smith  v.  Hill   (Cal.),  919. 


TABLE  OF  CASES. 


2003 


[References  are  to  pages.] 


Smith  v.  Lawrence  (Cal.),  244,  274,  1397. 

Smith  v.  Logan  (Nev.),  200. 

Smith  v.  Los  Angeles  &  P.  R.  Co.  (Cal.), 

1742. 
Smith  v.  McDonald    (Cal.),    432. 
Smith  v.  Milburn   (Iowa),  406. 
Smith  v.  Montoya   (N.   Mex.),   1810,   1884. 
Smith  v.  Nescatunga   Town   Co.    (Kan.), 

1932. 
Smith  v.  Ogden  etc.  R.  Co.  (Utah),  1544. 
Smith  v.  Pedigo   (Ind.),  1157. 
Smith  v.  Pullman  Co.    (Mo.),  128. 
Smith  v.  Redmond    (Iowa).    90. 
Smith  v.   Short  (Iowa),  1582. 
Smith  v.  Sims   (Mo.),  1582. 
Smith  v.  Smith    (80  Cal.),   1134. 
Smith  v.  Smith  (88  Cal.),  1820. 
Smith  v.  Smith    (124   Cal.),    498. 
Smith  v.  Smith   (Kan.),   759. 
Smith  v.  Smith    (Neb.),  497. 
Smith  v.  Smith   (Ore.),   1650. 
Smith  v.  Westerfield    (Cal.),   1063. 
Smith  v.  Young  (Mo.),  405,  407. 
Snedden  v.  Harmes  (Colo.),  668. 
Snyder  v.  Wabash  R.   Co.    (Mo.),   184. 
Snyder  v.  Wheeler   (Kan.),   73. 
Soden  v.  Murphy    (Colo.),    128. 
Solomon  R.  Co.  v.  Jones  (Kan.),  1458. 
Sorensen  v.  Sorensen  (Neb.),  1934. 
Sorrels  v.  Self  (Ark.),   108. 
South  Beach   L.   Assn.   v.    Bergle    (Cal.), 

1901. 
South  End    Min.    Co.    v.    Tinney    (Nev.), 

1135. 
South  Tacoma  F.  &  T.  Co.  v.  Tacoma  R. 

&  P.  Co.   (Wash.),  130. 
South  Texas     Tel.     Co.     v.     Huntington 

(Tex.),   70,  1287. 
South  Yuba  Water  Co.  v.  Rosa  (Cal.),  65. 
Soule  v.  Soule  (Cal.),  500. 
Southern    California    R.    Co.    v.    Superior 

Court   (Cal.),  893. 
Southern    California    I.    Co.    v.    Wilshire 

(Cal.),   1224. 
Southern   Development   Co.   v.    Silva    (U. 

S.),  1582. 
Southern  Missouri  etc.   R.   Co.  v.   Wyatt 

(Mo.),  1864,  1865,  1883,  1884. 
Southern  Pacific  R.  Co.  v.  Doyle  (Fed.), 

730. 
Southern    Pacific    Co.    v.    Prosser    (Cal.), 

274. 
Southern   Pacific   Co.   v.    Wilson    (Ariz.), 

1503. 
Sparks  v.  Bell   (Cal.),  1901. 
Spaulding  v.  Douglas  Co.   (Neb.),  63. 
Spaur  v.  McBee   (Ore.),  1135. 
Specht  v.  Allen    (Ore.),   1582. 


Spect  v.  Spect  (Cal.),  1134. 

Speelman  v.  Chaffee  (Colo.),  1648. 

Speer  v.  Burlingame  (Mo.),  1820. 

Speidel  v.  Henrici  (U.  S.),  275. 

Spencer,  Ex  parte  (Cal.),  893. 

Sperry  v.  Cook  (Mo.),  7,  1439. 

Spicer  v.  Earl    (Mich.),   555. 

Spieker  v.  Lash   (Cal.;,   1613. 

Spokane  Valley  L.  &  W.  Co.  v.  Arthur  D. 

Jones  &  Co.   (Wash.),  ±<jo. 
Spottswood  v.  Herrick  (Minn.),  64. 
Sprague  v.  Rooney   (Mo.),   70. 
Sprague  v.  Warren   (Neb.),  1382. 
Spreckels  v.  Gorrill   (Cal.),  1583,   1791. 
Spring  Valley  Water  Works  v.   Bartlett 

(Fed.),   1670. 
Spring  Valley  Water  Works  v.   Bartlett 

(Cal.),   S94. 
Spring    Valley    Water    Works    v.    Fifield 

(Cal.),  747. 
Spring  Valley  Water  Works  v.  San  Fran- 
cisco  (Cal.),   31,   1594. 
Stafford  v.  Drew   (N.   Y.),   203. 
Standard  v.  Round  Valley  W.  Co.   (Cal.), 

793. 
Standard   L.    Co.    v.   Miller  &   V.   L.    Co. 

(Okla.),   1280. 
Standiford  v.  Shideler  (Ind.),  951. 
Stanley  v.  Chappell  (N.  Y.),  433. 
Stark  v.  Chitwood  (Kan.),  1548. 
Stark  v.  Duhring   (Wis.),  90. 
Stark  v.  Zehnder  (Mo.),  1864,  1865. 
State  v.  Adams   (Mo.),  69,   1933. 
State  v.  Allen   (Kan.),   834. 
State  v.  Baker  (Mo.),  86z. 
State  v.  Baltimore    etc.    R.     Co.      (Md.), 

1504. 
State  v.  Barker   (Iowa),   833. 
State  v.  Bean  (Mo.),   1883. 
State  v.  Board  of  Comi.iissioners   (Ind.), 

271. 
State  v.  Bronsn    (Mo.),   881. 
State  v.  Buchanan   County    (Mo.),   862. 
State  v.  Carey  (N.  Dak.),  881. 
State  v.  Cass  County  Court  (Mo.),   69. 
State  v.  Conn   vOre.),  1866. 
State  v.  County  Court   (Ore.),   881. 
State  v.  Croom   (Fla.),  882. 
State  v.  Crumb  (Mo.),   62. 
State  v.  Delaney  (Mo.),  64,  65. 
State  v.  DeWitt   (Mo.),  1884. 
State  v.  Dick   (Wis.),   1822. 
State  v.  Downing  (Ore.),  1S66. 
State  v.  Duesirow  (Mo.),  8. 
State  v.  Duffy   (Nev.),  411. 
State  v.  Duluth  Board  of  Trade  (Minn.), 

1554. 
State  v.  Frew  (W.  Va.),  1S66. 


2004 


TABLE  OF  CASES. 


[References  are  to  pages.] 


State  v.  Goehler  (Mo.),  1884. 

State  v.  Gray  (Ore.),  1866. 

State  v.  Guerrero  (Nev.),  600. 

State  v.  Harris  (N.  Dak.),  1866. 

State  v.  Harrison   (Kan.),   631. 

State  v.  Headlee  (Wash.),  882. 

State  v.  Henderson  (Mo.),  1883,  1884. 

State  v.  Hoeffner    (Mo.),    1447. 

State  v.  Jackson  (Mo.),  8. 

State  v.  Jennings    (Mo.),   1883. 

State  v.  Logoni    (Mont).   1431. 

State  v.  Loud   (Mont.),   1865. 

State  v.  Ludington    (Wis.),   1615. 

State  v.  McCann  (Ohio),  411. 

State  v.  McCue  (Mo.),  1833. 

State  v.  Miller   (Cal.),  984. 

State  v.  Missouri  Pacific  R.  Co.   (Kan.), 

880. 
State  v.  Mott   (Wis.),   833. 
State  v.  Pitts   (Mo.),  1883. 
State  v.  Richardson   (N.  H.),  555. 
State  v.  Rney  (Mo.),  130,  1884,  1885,  1901. 
State  v.  Sadler  (Nev.),  833. 
State  v.  School  District  (Kan.),   631. 
State  v.  Second  Judicial  District  (Mont.) 

1947. 
State  v.  Standard  Oil  Co.   (Mo.),  1554. 
State  v.  St.   Louis  Public  Schools   (Mo.), 

881. 
State  v.  Stevenson   (Iowa),  1865. 
State  v.  Taylor   (Mo.),  8. 
State  v.  Weber  (Minn.),  141. 
State  v.  West  etc.   Railroad  Co.    (Wis.), 

833. 
State  v.  Western    Irrigating    Canal    Co. 

(Kan.),  833. 
State  v.  Yellow      Jacket     etc.      M.      Co. 

(Nev.),   1811. 
State   ex   rel.    Attorney-General  v.    Sim- 
mons H.  Co.   (Mo.),  61. 
State  ex  rel.  Attorney-General  v.  Seattle 

Gas  &  E.  Co.   (Wash.),  833. 
State  ex   rel.   Attorney-General  v.   Stock 

(Kan.),  880. 
State    ex    rel.    Attorney-General    v.    The 

Madison  Street  R.  Co.   (Wis.),  833. 
State  ex  rel.  v.  Boynton   (Wis.),  1948. 
State  ex  rel.  Cicoria  v.  Corgiat  (Wash.), 

632,  881. 
State  ex  rel.  Clapp  v.  Minnesota  Thresh- 
er M.   Co.   (Minn.),  833,   834. 
State  ex  inf.  Crow  v.  Vallins  (Mo.),  834. 
State  ex.  inf.  Dearing  v.  Berkeley  (Mo.), 

834. 
State  ex  rel.  v.  Elkin  (Mo.),  904. 
State  ex  rel.  Farmer  v.  Grand  Island  etc. 

R.  Co.   (Neb.),  974. 


State  ex  rel.  Francis  v.  Dillon  (Mo.),  904. 
State  ex  inf.  Hadley,  Attorney -General  v. 

Standard  Oil  Co.  (Mo.),  1554. 
State   ex   rel.   Hanks   v.    Packett    (Mo.), 

881. 
State  ex  rel.  Haskell  v.  Huston  (Okla.), 

632,  893. 
State  ex  rel.  Hinde  v.  United  States  F. 

&  G.  Co.   (Mo.),  89. 
State  ex  rel.  v.  Hough  (Mo.),  904. 
State  ex  rel.  Kellogg  v.  Plymell  (Kan.), 

832. 
State  ex  rel.  Leese,  Atty-Gen.,  v.  Atchi- 
son  &  N.   R.   Co.    (Neb.),   832. 
State  ex  rel.  Lewis  v.  Eggleston  (Kan.), 

649. 
State     ex     rel.    Lyon     v.     Police     Court 

(Wash.),  892. 
State     ex     rel.     Mahoney    v.    McKinnon 

(Ore.),   1860,   1861. 
State  ex  rel.  McCalley  v.  Superior  Court 

(Wash.),  892. 
State    ex    rel.    Miller   v.    Superior    Court 

(Wash.)    892. 
State  ex  rel.  Olson  v.  Allen  (Wash.),  893. 
State  ex  rel.  Potter  v.  Riley  (Mo.),  878. 
State    ex    rel.    Redenius    v.    Waggensoit 

(Wis.),  881. 
State  ex  rel.  Rife  v.  Reynolds  (Mo.),  176, 

1431. 
State  ex  rel.  v.  Rose  (Mo.),  833. 
State  ex  rel.  v.  Russell  (Okla.),  882. 
State  ex   rel.   Seibert,    State  Auditor,   r. 

Seibert  (Mo.),  681. 
State    ex    rel.    Smith    v.    Superior    Court 

(Wash.),  974. 
State  ex  rel.   Ft.  Louis,   K.   &  N.   W.   R. 

Co.  v.  Withrow  (Mo.),  892. 
State     ex     rel.     Tremblay     v.     McQuade 

(Wash.),  832. 
State  ex  inf.  Vallins  (Mo.),  833. 
State  ex  inf.   Walker  v.   Equitable  Loan 

&  Inv.  Co.    (Mo.),  833. 
State  ex  rel.  Weinberg  v.  Pacific  Brew- 
ing etc.  Co.    (Wash.),   632. 
State    ex    rel.    Weiss    v.    School    District 

(Wis.),  63,   64,  8S0. 
State  ex  rel.  Wirt  v.  Cass  County  Court 

(Mo.),  69. 
State  Bank  v.  Brown  (Iowa),  334. 
State   Loan    etc.    Co.    v.    Cochran    (Cal.), 

275. 
State  Savings  Bank  v.  Albertson  (Mont.>, 

107,  333,  729,  1398,  1869. 
Steamboat  Pembinaw  v.   Wilson   (Iowa), 

231. 
Stebbins  v.  Eddy   (Fed.),   1790. 
Steenerson  v.  Waterbury   (Minn.),  127. 


TABLE  OF  CASKS. 


2005 


[References  are  to  pages.] 


Steltz  v.  Morgan  (Idaho),  760. 

Sternberg  v.  Levy  (Mo.),  61. 

Stephens  v.  American  F.  Ins.  Co.  (Utah), 

35. 
Stephens  v.   Monongahela  Bank   (U.  S.), 

1294. 
Stephenson     v.      Southern     Pacific     Co. 

(Cal.),  1541. 
Stern  v.  State  Board   (Wash.),   649. 
Stetson  v.  Briggs  (Cal.),  72. 
Stevens  v.  Cheney  (N.  Y.),  1615. 
Stevens  v.  Fitzpatrick  (Mo.),  66,  67,  231, 

1089,  1157. 
Stevenson  v.  Belknap  (Iowa),  405,  407. 
Stevenson  v.  Smith  (Cal.),  747. 
Stewart  v.  Budd  (Mont),  329. 
Stewart  v.  Burbridge  (Cal.),  1929. 
Stewart  v.  Clinton  (Mo.),  31. 
Stewart  v.  Fowler  (Kan.),  1333. 
Stewart  v.  Johnston  (Iowa),  1671. 
Stich  v.    Dickenson    (Cal.),   1701. 
Stiles  v.  Cain   (Cal.),  1774. 
Stiles  v.  City  of  Guthrie   (Okla.),  246. 
Stimson  M.  Co.  v.  Hughes  M.  Co.  (Cal.), 

1286,  1912. 
Stivers  v.  Home  (Mo.),  8. 
St.  Louis  Assn.  v.  Delano  (Mo.),  333. 
St.  Louis    etc.    R.    Co.    v.    Carter    (Mo.), 

1864. 
St.  Louis   etc.   R.   Co.   v.    Franks    (Tex.), 

1493. 
St.  Louis  etc.    R.   Co.   v.    Furlow    (Ark.), 

1820. 
St.  Louis  etc.  R.  Co.  v.  Grimsley  (Ark.), 

1544. 
St.  Louis    etc.    R.    Co.    v.    Haist    (Ark.), 

1504. 
St.  Louis   etc.   R.   Co.   v.   Holmes    (Ark.), 

10S. 
St.  Louis  etc.   R.   Co.  v.   Hoover   (Kan.), 

1527. 
St.  Louis  etc.  R.  Co.  v.  Lewright   (Mo.), 

973. 
St.  Louis  etc.  R.  Co.  v.  Managan  (Ark.), 

1460. 
St.     Louis     etc.     R.     Co.     v.     McDermitt 

(Ark.),  1701. 
St.     Louis     etc.     R.     Co.     v.     McNamare 

(Ark.),  1504,   1816,   1820. 
St.  Louis   etc.   R.   Co.   v.    Philpot    (Ark.), 

1544. 
St.  Louis  etc.   R.   Co.   v.   Richter   (Ark.), 

90. 
St.  Louis    etc.    R.    Co.    v.    State    (Ark.), 

69. 
St.  Louis  etc.  R.  Co.  v.  Thacher  (Kan.). 

183. 
Jury's  PI.— 127. 


St.  Louis  etc.  R.  Co.  v.  Tiernan  (Kan.), 

1276. 
St.  Louis  etc.  R.  Co.  v.  Toomey  (Kan.), 

1540. 
St.  Louis  etc.  R.  Co.  v.  Townsend  (Ark.), 

1864. 
St.  Louis  etc.   R.   Co.  v.   Wilcox   (Tex.), 

1864. 
St.  Louis   etc.    R.    Co.   v.   Willis    (Kan.), 

1502. 
St.    Louis     etc.     R.     Co.     v.     Woodward 

(Ark.),  1864. 
St.  Louis  Nat.  Bank  v.  Gay  (Cal.),  90. 
St.    Paul   Typothetae  v.    St    Paul   Book- 
binders' Union  (Minn.),  231,  232. 
St.  Sure  v.  Lindsfelt  (Wis.),  32. 
Stoakes  v.  Larson   (Minn.),  1292. 
Stockton  Automobile  Co.  v.  Confer  (Cal.), 

655. 
Stockton    B.    &    L.    Assn.    v.    Chalmeri 

(Cal.),  732,  1030. 
Stockton  L.  Co.  v.  Schuler  (Cal.),  953. 
Stoddard  v.  Baker  (Neb.),  1118. 
Stoddard  v.  Tread  well  (Cal.),  34. 
Stokes  v.  Sprague  (Iowa),  66. 
Stone  v.  McCann  (Cal.),  1179. 
Stone  ex  rel.  St.  Louis,  I.  M.  &  R.  Co. 

(Mo.),  30. 
Stoneman    etc.    Co.    v.    McComb    (Ark.), 

760. 
Storm  v.  City  of  Butte  (Mont.),  670. 
Storz  v.  Finkelstein  (Neb.),  1937. 
Stoudt  v.  Shepherd  (Mich.),  406. 
Stout  v.  Calver  (Mo.),  1884. 
Stow  v.  Schiefferly  (Cal.),  34. 
Stratton  Cripple   Creek  etc.   Co.   v.   Elli- 
son  (Colo.),  1822. 
Strauch  v.  Flynn  (Minn.),  127,  277. 
Strayhorn  v.  Giles  (Ark.),  1500. 
Streator  v.  Linscott    (Cal.),    862. 
Streeter  v.  Rush  (Cal.),  1743. 
Stump  v.  Hornback   (Mo.),    1135. 
Stutsman    County    v.    Mansfield    (Dak.), 

1293. 
Suddarth    v.    Empire    Lime    Co.     (Mo.), 

1282. 
Sukeforth  v.  Lord  (Cal.).   15S2. 
Summers  v.   Sullivan   (Mont.),  974. 
Surulerman-Dolson   Co.    v.    Hope    (Tex.), 

1276. 
Sundmacher  v.  Lloyd  (Mo.).  36.  1885. 
Surles  v.  Sweeney   (Ore.),   1650. 
Sutton  v.  Cole  (Mo.),  1447. 
Sutton  v.  Huffman   (N.  J.),  405. 
Swamp  Land  Reclamation  Dist.  v.  Blum- 

enberg  (Cal.),  271.  952,  953,  1232. 
Swan  v.  City  of   lndianola   (Iowa),   1671, 

1672. 


2006 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Swan  v.  Norvell    (Wis.),   202. 

Swan  v.  Tappan  (Mass.),  1548. 

Sweeny  v.  Williams  (N.  J.),  1582. 

Swett  v.  Gray  (Cal.),  399,  403,  1906,  1934. 

Swift  v.  James   (Wis.),  64. 

Swift  v.  Occidental   M.    etc.    Co.    (Cal.), 

1934. 
Swift  v.  Swift   (Cal.),  183. 
Swope  v.  Seattle   (Wash.),  974. 
Sykes  v.  Lawlor  (Cal.;,  1504. 
Sylvester  v.  Jerome  (Colo.),  1669. 

Taggart  Mercantile  Co.  v.  Clack  (Ariz.), 
793. 

Tahoe  Ice  Co.   v.  Union  Ice  Co.    (Cal.), 
1248. 

Tainter  v.  Lucas  (Wis.),  1671. 

Tallman  v.  Ely    (Wis.),   1850. 

Tally  v.  Parsons  (Cal.),  1003. 

Tappendorff  v.  Moranda  (Cal.),  1134. 

Tarabino  v.  Nicoli  (Colo.),  1323. 

Tarbell  v.  Central  Pacific  R.  Co.   (Cal.), 
1493. 

Tate  v.  Rakow   (Neb.),   62. 

Tate  v.  Rose  (Utah),  37,  794,  1031. 

Tatum  v.  Rosenthal  (Cal.),  245. 

Taylor,  Ex  parte   (Cal.),  748. 

Taylor  v.  Adair   (Iowa),   1701. 

Taylor  v.  Bank  of  Volga  (S.   Dak.),   225. 

Taylor  v.  Branscombe   (Iowa),  1594. 

Taylor  v.  Cohn   (Ore.),  411. 

Taylor  v.  Ellenberger  (Cal.),  440. 

Taylor  v.  Hall  (Tex.),  692. 

Taylor  v.  Hearst  (Cal.),  389. 

Taylor  v.  Holmes   (U.   S.),  599. 

Taylor  v.  Manson   (Cal.),  664,  671. 

Taylor  v.  McClain  (Cal.),  734. 

Taylor  v.  Modern  Woodmen  (Wash.),  170. 

Taylor  v.  Ranney  (N.  Y.),  1106. 

Taylor  v.  Southerland  (Ind.  Ter.),  245. 

Taylor  v.  Taylor  (Iowa),  108. 

Taylor  v.  Western  Pacific  R.  Co.    (Cal.), 
1505. 

Taylor  v.  Williams   (Colo.),  1105. 

Teasdale  v.  Stoller  (Mo.),  691. 

Tebbets  v.  Fidelity  etc.  Co.  (Cal.),  275. 

Tell  v.  Gibson  (Cal.),  520. 

Telle  v.  Leavenworth  etc.  R.  Co.  (Kan.), 
1543. 

Tennessee    Mfg.    Co.    v.    James    (Tenn.), 
555. 

Terrill  v.   Terrill   (Cal.').  514. 

Territory  v.  Board  of  Comrs.   of  Berna- 
lillo County   (N.  Mex.),   880. 

Terry  v.  Rosell   (^.rk.),   80. 

Terry  v.  Sickles  (Cal.),  1288. 

Terwilliger  v.  Wands   (N.  Y.),   1549. 


Tessier    v.    Reed,    Jones    &    Co.    (Neb.). 

1689. 
Texas  etc.  R.  Co.  v.  Gross  (Tex.),  108. 

Texas  etc.  R.  Co.  v.  Hall  (Ark.),  90. 

Texas  etc.  R.  Co.  v.  Orr  (Ark.),  1505. 

Texas  Western  R.  Co.  v.  Gentry  (Tex.), 
184. 

The    Curtis,    (The    Camden,    The    Wel- 
come,)  (Fed.),  843. 

The  Glide  (U.  S.),  843. 

The  G.   &  H.   Mfg.   Co.  v.  Hall   (N.   Y.), 
1613. 

Theller  v.  Such  (Cal.),  1063. 

Thomas  v.  Carey  (Colo.),  330. 

Thomas  v.  Holmes    (Iowa),  277. 

Thomas    v.    Placerville    G.    Q.    M.    Co. 
(Cal.),  1821. 

Thomas  v.  State  (Idaho),  632. 

Thomasson    v.     Mercantile     etc.     I.     Co. 
(Mo.),  79,  1811,  1826,  1883. 

Thompson  v.  Basler  (Cal.),  1123. 

Thompson  v.  Colvin  (Ore.),  71,  1885. 

Thompson  v.  Spray  (Cal.),  792. 

Thompson  v.  White  (Colo.),  37,  227. 

Thorn  v.  Smith   (Wis.),  104. 

Thornburg  v.  Thornburg  (W.  Va.),  1743. 

Thornton  v.  Security  Co.   (Fed.),  1357. 

Thorson  &  C.  Co.  v.  Baker  (Iowa),  1248. 

Thurn  v.  Alta  Tel.  Co.  (Cal.),  183. 

Tieman  v.  Sachs    (Ore.),    66. 

Tifft    v.     State    Medical    Inst.     (Wash.), 
1670. 

Tillman  v.  Erp   (Tex.),   274 

Tilton  v.  James  L.  Gates  L.   Co.   (Wis.), 
1263,   1743. 

Timkin  Co.  v.  Smith  (Iowa),  66. 

Timson   v.    Manufacturers'    C.    &    C.    Co. 
(Mo.),  33i 

Tingly  v.   Times   Mirror   Co.    (Cal.),    106, 

107,  389. 

Tisdale  v.  Mitchell  (Tex.),  70. 
Tissot  v.  Darling  (Cal.),  1937. 
Title  Insurance  etc.  Co.  v.  Grider  (Cal.), 

1712,  1713. 
Tittman  v.  Green    (Mo.),   1430. 
Titus  v.  Insurance  Co.   (N.  Y.),  1357. 
Toby  v.   Oregon  Pac.   R.   Co.    (Cal.),   333. 
Toledo  C.  S.  Co.  v.  Young  (Idaho),  272. 
Tooney  v.  Knoblock  (Cal.),  71,  1935. 
Tootle  v.  Wells  (Kan.),  1280. 
Tower    v.    Compton    Hill    I.    Co.     (Mo.), 

1650. 
Towle  v.  Matheus    (Cal.),    1743. 
Towle  Bros.  v.  Quinn  (Cal.),  822. 
Town  of  Grand  River  v.  Switzer  (Iowa), 

108,  1791. 

Town     of    Santa    Monica    v.     Guidingei 
(Cal.).   688. 


TABLE  OF  CASES. 


2007 


[References  are  to  pages.] 


Toy  v.  Haskell  (Cal.)t  1836. 
Traer  v.  Whitman  (Iowa),   1883. 
Traynor  v.  Sielaff  (Minn.),  388. 
Treadwell  v.  Whittier  (Cal.),  1492. 
Tregear  v.   Etiwanda  Water  Co.    (Cal.), 

600. 
Trester  v.  Missouri  Pacific  R.  Co.  (Neb.), 

973. 
Treweek  v.  Howard  (Cal.),  35. 
Trezvant  v.  Strong  (Cal.),  1821. 
Trickey  v.   Clark   (Ore.),  1870. 
Trihay     v.      Brooklyn     Lead     Min.     Co. 

(Utah),  1457. 
Trimble  v.  Fyfer  v.  Elkin  (Mo.),  67. 
Trimble  v.  Railroad   (Mo.),  329. 
Trinity     County    v.     Mendocino     County 

(Cal.),  648. 
Tri-State  A.  Co.  v.  Forest  Park  etc.  Co. 

(Mo.),   272,   273. 
Troost  v.  Davis  (Ind.),  33. 
Trope  v.  Kerns   (Cal.),  1901. 
Troxler  v.  Buckner  (Cal.),  682. 
Truro  v.   Passmore   (Mont.),   1293. 
Tucker  v.  Hawkins  (Ark.),  1836. 
Tuolumne    etc.    Water    Co.    v.    Columbia 

etc.  Water  Co.  (Cal.),  1533. 
Turley  v.  Thomas   (Nev.),  1772,  1773. 
Turner     v.      Great      Northern      R.      Co. 

(Wash.),  1853. 
Tuthill  v.  Skidmore  (N.  Y.),  1417. 
Tuttle  v.  Buck    (Minn.),    411. 
Tuttle  v.  Howe  (Minn.),  1417. 
Tyler  v.  Houghton   (Cal.),   753. 
Tyler  v.  Reynolds  (Iowa),  546. 

Unger  v.  Mooney  (Cal.),  805. 
Union  Bank  v.  Laird  (U.  S.),  1699. 
Union  etc.  Ins.  Co.  v.  Spinks  (Ky.),  275. 
Union  Loan  etc.  Co.  v.  Farbestein  (Mo.), 

1864. 
Union  Lumber  Co.  v.   Simon   (Cal.),   953. 
Union  National  Bank  v.  Lyons  (Mo.),  71. 
Union  Pacific   R.    Co.    v.    Harris    (Kan.), 

14:")?. 

Union  Pacific  R.  Co.  v.  United  States 
!  Wyo.),   1643,  1648,   1811. 

Union  R.  Co.  v.  Dull  (U.  S.),  201. 

Union  R.  Co.  v.  Traube  (Mo.),  1263. 

Union  S.  Bank  v.  Dunlap  (Cal.),  184. 

Union  Street  R.  Co.  v.  Stone  (Kan.),  175. 

Union  Trust  Co.  v.  Atchison  etc.  R.  Co. 
(N.  Mex.),  225. 

Union  Trust  Co.  v.  State  of  California 
(Cal.),   631. 

United  Investment  Co.  v.  Los  Angeles 
Interurban  R.  Co.   (Cal.),  19:56. 

United  Lead  Co.  v.  J.  W.  Reedy  Ele- 
vator M.  Co.    (111.),   272. 


United  R.  etc.  Co.  v.  Traube  (Mo.),  1263. 
United  Shoe   M.    Co.    v.    Ramlose    (Mo.), 

271. 
United  States  v.   Beavers   (Fed.),  1865. 
United  States  v.  McDaniels  (U.  S.),  1811. 
United  States  v.  Ripley  (U.  S.),   1811. 
United  States  v.   Robeson    (U.    S.),   1811. 
United  States  Oil  etc.  Co.  v.  Bell  (Cal.), 

1864. 
University     of     California     v.      Bernard 

(Cal.),  1622. 
U.    S.    Casualty    Co.    v.    Hanson    (Colo.), 

170. 
Utley  v.  Clark-Gardner  L.  M.  Co.  (Colo.), 

272. 

Valley  Lumber  Co.  v.  McGilvery  (Idaho), 

141,  142,  334. 
Van  Arsdale  v.  Edwards  (Okla.),  90. 
Van  Arsdale-O.  B.  Co.  v.  Foster  (Kan.), 

33. 
Vanderslice  v.  Matthews  (Cal.),  1029. 
Vandervelden    v.     Chicago    etc.     R.     Co. 

(Fed.),    1500. 
Van  Duzer  v.  Van  Duzer  (Iowa),  497. 
Van  Eps  v.  Newald  (Wis.),  69. 
Van  Patten  v.  Waugh  (Iowa),  108. 
Vansellous  v.  Huene   (Okla.),  921. 
Van  Vechten  v.  Hopkins  (N.  Y.),  391. 
Varney  v.  Varney   (Wis.),   451. 
Vassault  v.  Austin   (Cal.),  1153. 
Vaughan  v.   Daniels   (Mo.),  35. 
Vaughn  v.  Hixon   (Kan.),  270. 
Vaule  v.  Steenerson   (Minn.),   682. 
Veeder  v.  Baker  (N.  Y.),  7. 
Venable    v.    Wabash    W.    R.    Co.    (Mo.), 

974. 
Vernon  County  v.   Stewart   (Mo.),   274. 
Vohs  v.  Shorthill  (Iowa),  1460. 
Vosburg  v.  Vosburg  (Cal.),  498. 
Vilas  v.  Mason  (Wis.),  104. 
Vinton  v.  Crowe  (Cal.),  1S3. 
Visalia  Savings  Bank  v.   City  of  Visalia 

(Cal.),  689. 
Visalia  etc.  R.  Co.  v.  Hyde  (Col.),  601. 
Vrooman  v.  Li  Po  Tai  (Cal.),  Isl'T. 
Vukelis  v.  Virginia  Lumber  Co.   (Minn.), 

31,    64,   1458. 

Waddingham  v.  Robledo  (N.  Mex.),  1228, 

1670.   1671. 
Wadleigh  v.  Phelps  (Cal.),  276,  735. 
Waechter  v.  Atchison  etc.  R.  Co.   (Cal.), 

1821. 
Wakeham  v.   Barker  (Cal.),   1936. 
Walburn  v.  Chenault  (Kan.),   1429. 
Waldner    v.     Bowden     State     Bank     (N. 

Dak.),  1293. 


2008 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Wales  r.  Mower   (Colo.),  1335. 
Walker  v.  Bamberger  (Utah),  601. 
Walker  v.  Duncan   (Wis.),  1030. 
Walker  v.  Files  (Ark.),  63. 
Walker  v.  Fleming  (Kan.),  10S8. 
Walker  v.  Fuller  (Ark.),  80. 
Walker  v.  McCusker  (Cal.),   200. 
Walker  v.  Pumphrey  (Iowa),  36. 
Walker  v.  Stone  (Iowa),  1671. 
Walker  v.  St.  Louis  (Mo.),  691. 
Walker  v.  Whitehead   (U.  S.),  734. 
Wallace  v.  Ah  Sam  (Cal.),  1743. 
Walling  v.  Brown  (Idaho),  1885. 
Walpole,  Ex  parte  (Cal.),  1947. 
Walser  v.  Wear  (Mo.),  1409,  1864,  1865. 
Walsh  v.  McKeen   (Cal.),  33. 
Walsh  v.  Mayer  (U.  S.),  1294. 
Walters  v.  Denver  Cons.   Electric  Light 

Co.  (Colo.),  1541. 
Walton,  Ex  parte  (Okla.),  1948. 
Wanser  v.  Lucas   (Neb.),  1135. 
Wapello  etc.  Bank  v.  Colton  (Iowa),  61, 

63,  270,  271. 
Warburton  v.  Ralph  (Wash.),  389. 
Ward  v.  Blackwood  (Ark.),  390. 
Ward  v.  Blythe   (Ark.),  1936. 
Ward  v.  Clay    (Cal.),    34,    123,    124,    125, 

130,  1396. 
Ward  v.  Flood  (Cal.),  411. 
Ward  v.  Huggins  (Wash.),  1135. 
Ward  v.  Kilpatrick  (N.  Y.),  953. 
Ward  v.  Thompson   (Iowa),  1616. 
Ward  v.  Weeks  (Eng.),  1549. 
Wardell  v.  McConnell  (Neb.),  1615. 
Warder  v.  Enslen  (Cal.),  734. 
Warner  v.  Bates  (Wis.),  1580. 
Warner  Elevator   Mfg.    Co.    v.    Maverick 

(Tex.),  951. 
"Vvarner  v.  Southern    Pacific    Co.    (Cal.), 

1743. 
Warner  v.  Warner   (Cal.),   1821. 
Warren  v.  Hall  (Colo.),  1581. 
Warren  v.  Hopkins   (Cal.),   175. 
Wasserman  v.  Sloss  (Cal.),  1869. 
Wasson  v.  Boland    (Mo.),   107,   616. 
Waterloo  v.  Waterloo  St.  R.  Co.  (Iowa), 

1670. 
Waterman  v.  Irby  (Ark.),  33. 
Watkins  v.  Bryant  (Cal.),  200,  1802. 
Watson  v.  Molden  (Idaho),  1582. 
Watson  V.  Roode  (Neb.),  1246. 
Watson  v.  Sutro  (Cal.),  514,  1836. 
Watson  v.  Watson  (Mich.),  406. 
Watt  v.  Smith  (Cal.),  200. 
Watts  v.  Gallagher  (Cal.),  732. 
Weatherly  v.  Straus  (Cal.),  1319. 
Weaver  v.  Trustee  &  W.  E.  Canal  (Ind.), 

1335 


Weaver  v.  Wabash  etc.  Canal  (Ind.),  200 

Webb  v.  Gilman  (Me.),  368. 

Weber  v.   Atchison  etc.   R.   Co.    (Kan.), 

1502. 
Weber  v.  Bullock  (Colo.),  1699. 
Weber  v.  Dillon   (Okla.),   246. 
Weber  v.  Kirkendall  (Neb.),  1565. 
Weber  v.  Tschetter  (S.  Dak.),  1447. 
Webster  v.   Norwegian  Min.   Co.    (Cal.), 

203. 
Wedderspoon  v.  Rogers  (Cal.),  1397. 
Wegner    v.     Second    Ward     Sav.     Bank 

(Wis.),  1648. 
Weil  v.  Schmidt   (Wis.),   391. 
Weir  v.  West  (Kan.),  998. 
Weitzel  v.  Layson  (S.  Dak.),  1106. 
Welch  v.  Mayer  (Colo.),  668. 
Weld  v.  Johnson  Mfg.  Co.  (Wis.),  1135. 
Wellman  v.   Oregon   etc.   R.   Co.    (Ore.), 

1502. 
Wells  v.  Adams   (Mo.),   1883. 
Wells  r.  Morro  (Ala.),  1106. 
Wells  Fargo    &    Co.    v.    Enright    (Cal.), 

274,    275. 
Welsh  v.  Anderson   (Mo.),   822. 
Weltin  v.  Ins.  Co.  (N.  Y.),  1357. 
Wemple   v.    ifosemite   G.    M.    Co.    (Cal.), 

735. 
Wendling    L.    Co.    v.    Glenwood    L.    Co. 

(Cal.),  1603,  1604. 
Wendover  v.  Baker  (Mo.),  79. 
Wenzel  v.  Schultz  (Cal.),  1134. 
Werner  v.  Ascher  (Wis.),  390. 
Wert  v.  Strouse  (N.  J.),  405. 
Werth  v.  Springfield  (Mo.),  31. 
Wertheimer  etc.  Co.  v.  McDonald  (Mo.), 

61,  70,  145. 
West  v.  Betchel  (Mich.),  1287. 
West  v.  Crawford  (Cal.),  200. 
West  v.  Johnson  (Idaho),  30. 
West  v.  Meserve  (N.  H.),  682. 
West  v.  Moser  (Mo.),  1263. 
West  v.  Telegraph  Co.  (Kan.),  79. 
West  v.  Western  Union  Tel.  Co.   (Kan.), 

1479. 
Western  assurance  Co.  v.  Towle  (Wis.), 

1030. 
Western  Home  Ins.  Co.  v.  Thorp  (Kan.), 

1355. 
Western  L.    Co.    v.    Phillips    (Cal.),    432, 

433. 
Western    Travelers'    A.    A.    v.     Tomson 

(Neb.),  1934. 
Western     Lnion     Tel.     Co.     v.     Bodkin 

(Kan.),    79. 
Western    Union    Tel.    Co.    v.    Davenport 

(U.  S.),  601. 


TABLE  OF  CASES. 


2009 


[References  are  to  pages.] 


Weston   v.    Bear   River   etc.    Co.    (Cal.), 

1699. 
Weston  v.  Stoddard  (N.  Y.),  822. 
Westwater  v.  Grace  Church  (Cal.),  1742. 
Wetherill  v.  McCloskey  (W.  Va.),  1324. 
Wetmore  v.  Church  (Mo.),  1869. 
Wetmore  v.  Hegeman  (N.  Y.),  200. 
Wetmore  v.  San  Francisco  (Cal.),  1398. 
Whaley  v.  Stevens  (S.  C),  30. 
Wheatley  v.  Strobe  (Cal.),  226. 
Wheeler  v.  Bolton  (Cal.),  1934. 
Wheeler  v.  Northern  Colo.  I.  Co.  (Colo.), 

881. 
Wheeler   v.    San    Francisco   etc.    R.    Co. 

(Cal.),  1479. 
Whelan  v.  Reilly  (Mo.),  1324. 
Wheless  v.  Meyer  etc.  Co.  (Mo.),  1699. 
Whitbeck  v.  Sees  (S.  Dak.),  1293. 
Whitby  v.  Rowell  (Cal.),  34,  35. 
White  v.  Allatt  (Cal.),  200. 
White  v.  Chesapeake   R.    Co.    (W.    Va.), 

1493. 
White  v.  Clarke  (Cal.),  912. 
White  v.  Denman  (Ohio),  1790. 
White  v.  Gibson  (N.  Y.),  73. 
White  v.  Horton  (Cal.),  1177. 
White  v.  Lyons  (Cal.),  33. 
White  v.  McFarland  (Mo.),  176,  1029. 
White  v.  Merrill  (Cal.),  1936. 
White  v.  Middlesworth  (Mo.),  71. 
White  v.  Murtland  (111.),  407. 
White  v.  Railroad  (Mo.),  146,  147. 
White  v.  Sage  (Cal.),  1773,  1774. 
White  v.  Scott  (Kan.),  246. 
White  v.  Stoner  (Mo.),  407. 
White  v.  White  (Wis.),  31. 
Whitehouse  v.  Cowles  (Wash.),  389. 
Whitesett    v.     People's     National     Bank 

(Mo.),  1319,  1933. 
Whiting  v.  Root  (Iowa),  33. 
Whitman  V.  Willis  (Tex.),  225,  226. 
Whitney  v.  Blackburn  (Ore.),  833. 
Whitney  v.  Karner  (Wis.),  1933. 
Whittemore  v.  Judd  Linseed  etc.  Oil  Co. 

(N.  Y.),  184. 
Wicecarver  v.  Mercantile  etc.  Co.   (Mo.), 

67,  68,  79,  1357,  1826. 
Wichita    Nat.    Bank    v.    Maltby    (Kan.), 

1319. 
Wickersham,  Estate  of  (Cal.),  1044,  1046. 
Wieland  v.   Southern   Pacific  Co.    (Cal.), 

1487. 
Wiggins  v.  McDonald  (Cal.),  8. 
Wilbur  v.  Railway  (Mo.),  1742. 
Wilcox  v.  Jamieson  (Colo.),  1287. 
Wilhite    v.     Billings     etc.     Co.     (Mont.), 

1669,   1743. 
Wilhite  v.  Wilhite  (Kan.),  437. 


Wilhoit  v.  Lyons  (Cal.),  1106. 
Wilkerson  v.  Farnham   (Mo.),  71,  ^i. 
Wilkins  v.  Stidger   (Cal.),   1278. 
Wllkins  v.  Tourtellott  (Kan.),  1133. 
Williams  v.  Anderson    (Minn.),   1884. 
Williams  v.  Ashe   (Cal.),   1417. 
Williams  v.  Atchison  etc.   R.   Co.    (Cal.), 

1899. 
Williams  v.  Bailey  (Tex.),  1701. 
Williams  v.  Baker    (Mo.;,    1248. 
Williams  v.  Bergin   (Cal.),   65,   177. 
Williams    v.    Casebeer    (Cal.),    353,    360, 

361. 
Williams  v.  City    of    San    Pedro    (Cal.), 

790. 
Williams  v.  Haines    (Iowa),   1500. 
Williams  v.  Hall  (Cal.),  1883. 
Williams  v.  Hawley    (Cal.),    1835,   1933. 
Williams  v.  Keith   (Tex.),   274.. 
Williams  v.  Kitchen    (Mo.),    1263. 
Williams  v.  Lane    (Cal.),   1936. 
Williams   v.    Southern     Pacific     R.     Co. 

(Cal.),  1323. 
Williams  v.  Sturdemant  (Ala.),  1790. 
Williams  v.  The  Sirius  (Fed.),  843. 
Williams    v.    Williams    (Colo.),    63,    401, 

402,  403. 
Williams  v.  Wilson  (Ore.),  735. 
Williamson  v.  Brown   (Mo.),  275. 
Willis  v.  Smith  (Tex.),  1133. 
Willis  &  Bro.  v.  Hudson  (Tex.),  70. 
Wills  v.  Lochnane    (Ky.),   1046. 
Wills  v.  Nehalem    Coal    Co.     (Ore.),    63, 

274,   276,    277,   1580. 
Wilson  v.  Carter  (Cal.),  1936. 
Wilson  v.  Fitch  (Cal.),  390. 
Wilson  v.  California    C.    R.    Co.     (Cal.), 

1480,  1546. 
Wilson  v.  Commercial  Union  Ins.  Co.   (S> 

Dak.),  71. 
Wilson  v.  Dubois   (Minn.),   1549. 
Wilson  v.  Nugent   (Cal.),   953. 
Wilson  v.  Puget  Sound  Electric  Car  Ca 

(Wash.),   1505. 
Wilson  v.  Suydam    (N.   Y.),   79. 
Wilson  v.  Wilson   (Cal.),   246,  794. 
Wilson  v.  Wilson  (Iowa),  499. 
Wilson  v.  Wilson    (Ore.),   277. 
Wilson  v.  Wilson  (Minn.),  440. 
Wilson  v.  Yegean  Bros.  (Mont.),  1287. 
Winans  v.  Dunham  (N.  Y.),  1883. 
Winchester  v.  Black  (Cal.),  1827. 
Windsor  v.  Minor  (Cal.),  1773,  1774. 
Winfield  Co.  v.  Maris  (Kan.),  246. 
Wingert  v.   City  of  Tipton   (Iowa),   1071, 

1672. 
Winn  v.  Insurance  Co.    (Mo.),  1357. 
Winningham  v.  Fancher  (Mo.),  1293. 


2010 


TABLE  OF  CASES. 
[References  are  to  pages.] 


Winslow     v.     Minnesota     etc.     R.     Co. 

(Minn.),   200. 
Winsor  v.  Ottofy  (Mo.),  390. 
Winters  v.  Rush   (Cal.),  200,  1335. 
Wintz  v.  Morrison  (Tex.),  1790. 
Wirth  v.  Weigand   (Neb.),   440,   1933. 
Wisdom  v.  Shanklin   (Mo.),  440. 
Wise  v.  Hogan   (Cal.),  65. 
Wise  v.  Rose  (Cal.),  72. 
Wiseman  v.  Eastman   (Wash.),  225. 
Withers  v.  Berry  (Kan.),  1408. 
Witteman  v.  Watry  (Wis.),  72. 
Wittmeier's  Estate,  In  re  (Cal.),  1866. 
Woffenden  v.   Woffenden   (Ariz.),  1669. 
Wolfe  v.  State  (Ind.),  882. 
Wood,  In  re  (Fed.),  1865,  1866. 
Wood  v.  Brush  (Cal.),  183. 
Wood  v.  Fox  (Utah),  1029. 
Wood  v.  Franks  (Cal.),  1699. 
Wood  v.  Goodfellow  (Cal.),   274. 
Wood  v.  Herrman  Min.  Co.    (Cal.),  1822. 
Wood  v.  McDonald  (Cal.),  1603. 
Wood,  Curtis    &    Co.    v.    Seurich    (Cal.), 

333. 
Woodbury   v.    Nevada    S.    R.    Co.    (Cal.), 

1S27. 
Woodruff    v.    Bearman    F.    Co.    (Minn.), 

1545. 
Woods  v.  Lisbon   (Iowa),   108. 
Woodside  v.  Hewel  (Cal.),  1936. 
Woodworth  v.  Knowlton  (Cal.),  693. 
Woollacott  v.  Meekin  (Cal.),  1935. 
Woolley  v.  Wickerd   (Cal.),  1105. 
Worcester  v.  Kitts   (Cal.),   95,   793. 
Worley  v.  Moore  (Ind.),  1293. 
Worley  v.  Sheppard  (Iowa),  730. 
Wormall  v.  Reins  (Mont.),  108. 
Wrege  v.  Jones  (N.  Dak.),  390. 
Wright  v.  Ascheim   (Utah),  360. 


Wright  v.  Ce.itr  1  Cal.  C.  W.  Co.  (CaI.), 

601. 
Wright  v.  Connor    (Iowa),    79. 
Wright  v.  Ragland  (Tex.),  1700. 
Wright  v.  Tinsley  (Mo.),  1335. 
Wrought  Iron   R.   Co.   v.   Young   (Ark.), 

108. 
Wurts  v.  Hoagland  (U.  S.),  1237. 
Wylie  v.  Sierra  G.  Co.   (Cal.),  1849. 
Wymond  v.  Amsbury   (Colo.),  403. 

Yerian  v.  Linkletter  (Cal.),  1743. 

Yik  Hon  v.  Spring  Valley  Water  Works 

(Cal.),  1545. 
Yonley  v.  Thompson  (Ark.),  246. 
Young  v.  Blakeman  (Cal.),  270,  1085. 
Young  v.  Cannon  (Utah),  893. 
Young  v.  Cook  (Mass.),  391. 
Young  v.  Downy   (Mo.),   1135. 
Young  v.  Glascock    (Mo.),   73. 
Young  v.  Miller   (Cal.),   72. 
Young  v.  People    (111.),   953. 
Young  v.  Stickney   (Ore.),  245. 
Young  v.  Wright   (Cal.),  176. 
Young  v.  Young  (N.  H.),  433. 
Younger  v.  Judah  (Mo.),  411. 
Younger  v.    Spreckels    (Cal.),    1813,    1814, 

1815. 
Younie  v.  Blackfoot  L.  &  W.  Co.  (Idaho), 

1530. 
Yukon  River  S.  B.  Co.  v.  Gratto   (Cal.), 

1605. 
Yundt  v.  Hartrunft  (111.),  407. 
Yurann  v.  Hamilton  (Kan.),  162. 

Zalesky  v.  Home  Ins.  Co.    (Iowa),  271. 

Ziel  v.  Dukes  (Cal.),  32. 

Zimmerman  v.    Robinson   &   Co.    (Iowa), 

147. 
Zivi  v.  Einstein  (N.  Y.),  72. 


INDEX 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pagt*  1239-1969.] 

Abatement  and  revival,  204. 

Abatement  of  nuisance.     See  Nuisance;  Injunction. 

Abatement,  pleas  and  defenses  generally.     For  particular  pleas,  see  separate 
headings, 
defenses  in  abatement  and  miscellaneous  defenses,  247. 
defense  based  upon  incapacity  of  foreign  corporation  to  sue  by  reason  of 
non-compliance  with  the  laws  of  the  state  in  which  suit  is  brought 
(form),  249. 
matters  in  abatement  under  Missouri  statutes,  67,  68. 
matters  in  abatement,  when  waived,  269. 
plea  in  abatement  amounting  to  general  denial — trial,  1864. 
pleas  in  abatement  not  favored,  269. 

Abduction.    See,  also,  Seduction. 

abduction  or  seduction  of  personal  relations,  392. 

complaint— action  for  enticing  away,  and  for  criminal  conversation  with, 
plaintiff's  wife  (form),  393. 
action  by  husband  for  enticing  away  his  wife,  and  charging  malice  and 

wantonness  (form),  394. 
action  for  harboring  plaintiff's  wife  (form),  395. 

Acceptance.     See  Negotiable  instruments. 

Accord  and  satisfaction,  defense  of. 
accord  defined,  289. 
affirmative  defense,  330. 

defense  of  accord  and  satisfaction  (form),  289,  290. 
effect  of  accord,  289. 
necessary  averments  of  defense,  330. 
plea  of  accord  and  satisfaction  held  sufficient,  330. 
satisfaction  defined,  2S9. 
pleading  an  account,  163. 

Account  stated.    See,  also,  Debt,  actions  for. 

complaint — action  to  recover  interest  on  a  balance  due  on  an  account  stated 
(form),  1280. 
defense  of  denial  of  account  stated  (form),  1286. 
mistake  in  account  stated,  how  put  in  issue,  12S8. 
nature  of  account  stated,  1287. 
pleading  cause  as  a  stated  account,  1272. 

(2011) 


2012  INDEX. 

[References  are  to  pages.    Vol.  I.  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Accounting.    See  Partnership  and  accounting. 

Accounts,  actions  upon.    See,  also,  Debt,  actions  for;  Sale  and  purchase;  A» 
count  stated, 
action  for  balance  of  account,  1288. 
daily  balances,  1288. 

Act  of  God,  so-called.    See  Irresistible  superhuman  cause,  as  defense. 

Administrators.    See  Executors  and  administrators,  actions  by  and  against. 

Admissions.    See,  also,  Answer  to  complaint  (or  petition);  Demurrer  to  coi» 
plaint  (or  petition), 
admission  by  insufficient  denial,  71. 

admissions  in  the  answer  referable  to  the  complaint,  69. 
admissions  in  pleadings,  911. 
averments  not  denied  deemed  true,  68,  69. 
matters  not  deemed  admitted  for  failure  to  deny,  69. 
trials — admissions  in  pleadings,  1863. 
when  fact  of  agency  is  admitted  by  pleadings,  1334. 

Adoption.    See,  also,  Minor  children,  custody  and  support  of. 
abandoned  and  abused  children,  547. 
adoption  generally,  537. 

adoption  and  legitimation  of  illegitimate  child,  545. 
complaint  by  overseer,  547. 
consent  of  parents,  546. 
order  of  adoption,  543. 
order  upon  contract  of  adoption,  546. 
proceedings  on  adoption,  537. 
right  of  adoption,  546. 

Adultery.     See  Divorce,  causes  for. 

Adverse  claims  to  real  property.     See,  also,  Quieting  title. 

actions  to  determine  adverse  claims;  to  remove  cloud  upon  title,  etc.,  795*. 
complaint  to  remove  mortgage  cloud  upon  title  (form),  771. 

elements  of  adverse  possession,  805. 
independent  title  created  by  adverse  possession,  794. 
occupation  under  written  instrument  or  judgment,  when  deemed  adverse. 

801. 
possession,  when  presumed — occupation  deemed  under  legal  title,  unless 

adverse,  799. 
premises  occupied  under  claim  of  title  deemed  to  be  held  adversely,  803. 
relation  of  landlord  and  tenant,  as  affecting  adverse  possession,  804. 
title  by  prescription,  805. 
what  constitutes  adverse  possession   under  written  instrument  or  judg. 

ment,  802. 
what  constitutes  adverse  possession  under  claim  of  title  not  written,  80* 


INDEX.  2013 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Adverse  possession,  defense  of. 

defense  of  adverse  possession — action   for  restoration   of  lands  and   for 
value  of  rents  and  profits,  1086. 
as  tenants  in  common  with  plaintiffs— action  to  quiet  title  to  a'leged 
prescriptive  water-right  (form),  1211. 
defense  of  prescriptive  right  to  use  of  waters  (form),  1212. 

Affidavits. 

affidavit — as  basis  of  jurisdiction,  1849. 

where  required,  as  in  contempt,  is  jurisdictional,  1866. 

omission  in  affidavit,  where  jurisdictional,  may  be  cured  by  answer. 

1866. 
service  of  notice  on  a  person  not  an  attorney  (form),  1837. 
service  of  notice  by  mail   (form),  1837. 

service  of  notice  on  an  attorney  absent  from  his  office  (form),  1838. 
service  of  notice  on  an  attorney  at  his  residence  when  his  office  is 

closed  (form),  1838. 
service  of  notice  on  an  attorney  at  office  in  charge  of  a  clerk  or  other 

person  (form),  1839. 
service  by  citation  (form),  1840. 

service  of  summons  on  several  defendants  (form),  1839. 
on  motion  to  file  supplemental  answer  (form),  134. 
accompanying  motion  to  file  supplemental  complaint  (form),  134. 
accompanying  notice  of  motion  of  defendant  to  revive  action  in  which 

plaintiff  is  deceased  (form),  217. 
accompanying  notice  of  motion  to  revive  action  in  which  defendant  ig 

deceased   (form),  218. 
accompanying   notice   of   motion    to    substitute    officer's    successor    us 

party  (form),  218. 
in  attachment  and  garnishment,  1688. 
for  claim  and  delivery  (form),  1633. 
to  obtain  leave  to  correct  fictitious  name  (form),  234. 
accompanying  notice  of  motion  to  elect  between  causes  (form),  143. 
of  clerk  on  motion  to  dismiss  (form),  889. 
by    attorney    accompanying    notice    of    motion    to    vacate    stipulation 

(form),  125. 
by  attorney-in-fact  accompanying  notice  of  motion  to  vacate  stipulation 

(form),  124. 
error  in   signing,   or  omission   to   sign   affidavit — validity  not   destroyed 

1850. 

Agency. 

action  to  recover  commission — complaint  held  sufficient,  1334. 
agent  suing  alone,  1335. 

complaint — by  a  foreign  corporation  against  its  agent  and  manager,   for 
an  accounting  (form),  1325. 
by  real  estate  agent,  for  commissions  (form),  1328. 


2014  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Agency  (continued). 

complaint  upon  special  contract  to  protect  agent  in  his  right  to  commis- 
sions (form),  1329. 
defense — denying  agency  (form),  1331. 

based  upon  special  contract  as  to  commissions  (form),  1331. 
including  counterclaim  for  damages  for  disobeying  principal's  orders 
in  regard  to  stock  transactions  (form),  1331. 
departure  by  agent  from  his  authority,  1334. 

distinction  between  contract  to  find  purchaser  and  contract  to  sell,  1333. 
formal  tender  of  purchase  price — when  unnecessary,  1334. 
oral  offer  to  buy,  1334. 
parol  contract  to  find  purchaser,  1334. 
pleading  ratification,  1335. 
when  agency  is  admitted  by  the  pleadings,  1334. 

Agreed  case. 

agreed  case,  or  controversy  without  action — affidavit,  905. 

findings  upon  submission  (form),  911. 

judgment  upon  submission  (form),  911. 

submission  of  controversy  without  action  (form),  906. 

Agreed  statement  of  facts. 

presenting  issue  as  to  effect  of  a  particular  statute  (form),  907. 

issue  as  to  validity  of  title  derived  through  sale  under  trust-deed  as 
against  homestead  claim   (form),  908. 
judgment  of  dismissal — action  to  quiet  title  to  tide  lands  (form),  790. 

Agreements.     See  Contracts. 

Alienation   of  affections. 

complaint — action  by  wife  for  alienation,  408. 

action  by  wife  for  alienating  affections  of  her  husband,  and  causing 
him  to  separate  from  and  desert  her  (form),  401. 
conspiracy  to  alienate,  408. 
test  of  sufficiency  of  pleading,  407. 

verdict  allowing  compensatory  and  exemplary  damages  in  an  action  by 
an  unmarried  woman  for  seduction   (form),  403. 

Alimony.     See  Maintenance  of  wife. 

Allegations.     See  Particular  allegations. 

Alteration  of  instruments.  See,  also,  Cancelation  of  instruments;  Rescis- 
sion; Negotiable  instruments. 

alteration  of  contracts  in  writing,  312. 

alteration  or  destruction  of  duplicate — effect  of,  313. 

destruction,  cancelation,  or  alteration  by  party  entitled  to  benefit  under 
written  instrument — effect  of,  312. 

partial  extinguishment  by  alteration  of  verbal  contracts,  312. 


INDEX.  2015 

[References  are  to  pages.    Vol.  I,  pages  1-1238:  Vol.  II.  pages  1239-1960.] 
Ambiguity.     See  Demurrer  to  complaint;   Demurrer  to  answer. 

Amendments  to   pleadings. 

amendments  to  pleadings  generally,  96. 

admission  of  service  of  amended  pleading  (form),  103. 

allowance  of  amendments  favored,  104. 

amending  prayer  after  testimony  taken,  and  before  submission,  109. 

amending    prayer   to    petition   in    equity,    by    adding    request    for    money 

judgment,  109. 
amendment — as  affected  by  the  bar  of  the  statute  of  limitations,  105. 

alleging  omitted  facts,  107. 

of  complaint  in  forcible  and  unlawful  entry  and  detainer  to  conform 
to  proof,  917. 

inserting  true  names,  235. 

stating  cause  of  action  more  specifically  than  required,  107. 

substantially  changing  nature  of  defense,  108. 

to  conform  to  proof,  108. 

when  not  a  departure,  107. 

at  time  of  trial,  105. 

of  pleadings  on  retrial  after  appeal,  106. 
application  to  amend — where  not  in  furtherance  of  justice,  108. 

as  to  admission  improvidently  made,  104. 

as  to  non-delivery  of  deed  asserted  to  be  valid  as  a  will,  104. 
bringing  in  new  parties  by  amendment  in  partition,  822. 
California  code  rule  relating  to  amendments  as  of  course,  106. 
damages  claimed,  amendment  as  to,  108. 
damages,  amendment  of  prayer  for,  109. 
demurrer  to  amended  pleading,  105. 
departure  or  substitution  of  new  cause  of  action,  107. 
dilatory  plea,  asserting  by  amendment,  107. 
effect  of  amendment  upon  original  pleading,  105. 
interposition  of  terms,  105. 

matters  admitted  in  evidence  over  objection,  108. 
new  cause  not  to  be  stated — original  pleading  stating  no  cause,  106. 
prevention  of  mistrial,  108. 
procedure  upon  amending  the  complaint,  96. 
purpose  of  amendment — foreign  statute  as  to  damages,  109. 
refusing  amendment,  107. 

relation  of  amendment  to  original  pleading,  105. 
right  to  amend  pleadings  in  actions  for  libel,  389. 
right  of  defendant  to  reasonable  postponement  of  trial,  106. 
rules  as  to  demurrer  and  answer,  98. 
rule  favoring  amendments  specially  applicable  to  amending  of  answers, 

104. 
rule  on  appeal  as  to  decision  permitting  or  refusing  amendment,  105. 
test  as  to  whether  amended  pleading  substitutes  new  cause,  106. 
time  of  amending— general  rule,  105. 


20]  (J  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  IT,  pages  1239-1969. 1 

Amendments  to  pleadings  (continued). 

time  to  amend  or  answer  after  demurrer — notice  of  decision,  100. 

treating  pleadings  as  amended,  108. 

uncertainty  removable  by  amendment,  104. 

waiver  of  ruling  on  motion  to  strike  out  amended  pleading,  105. 

Amending  record  of  court. 

amended  judgment  for  defendant  (form),  1880. 

correction  of  mistake  of  record,  1780. 

nunc  pro  tunc  order  amending  record,  1836. 

Annulment  of  marriage. 

annulment  of  marriage  generally,  441. 

actions  to  annul,  when  and  by  whom  commenced,  445. 

annulment  akin  to  right  of  rescission,  451. 

causes  for  annulment,  441. 

for  impotency,  451. 

for  fraud — basis  of  right  of  action,  451. 
complaint — to  declare  marriage  void  (form),  448. 
complaint  for  annulment — on  the  ground  of  fraud  (form),  450. 

on  the  ground  of  impotency  (form),  448. 

on  the  ground  of  lunacy  (form),  449. 

on  the  ground  of  non-age,  by  party  to  the  marriage  (form),  449. 

on  the  ground  of  non-age,  by  parent  (form),  449. 

where  former  husband  or  wife  is  living  (form),  450. 
insanity — kleptomania  not  ground  for  annulment,  451. 

Another  action  pending.    See  Pendency  of  action,  defense  of. 

Answer  to  complaint  [or  petition].     See,  also,  Admissions;  New  matter, 
affirmative  defense,  construing  of,  73. 
analysis  of  answer  (form),  52. 
answer — what  required  to  contain,  49. 

should  include  all  defenses,  67. 

in  actions  relating  to  agency,  1331. 

in  civil  actions  for  assault,  etc.,  364. 

in  actions  for  bailment  or  deposit,  1318. 

in  action  upon  a  bond,  1430. 

in  actions  relating  to  breach  of  promise  of  marriage,  1438. 

in  actions  for  breach  of  miscellaneous  contracts,  1259. 

in  actions  relating  to  builders'  contracts,  1094. 

in  actions  for  cancelation  of  instruments,  1799. 

in  actions  by  and  against  cities,  etc.,  662. 

in  conversion  and  trover,  1602. 

in  actions  relating  to  private  corporations,  595. 

in  employers'  liability  cases,  1455. 

in  actions  upon  judgments,  1445. 


INDEX.  2017 

[References  are  to  pases.     Vol.  I,  pages  1-1238;  Vol.  H,  pages  1239-1969.] 

Answer  to  complaint  or  petition  (continued). 

answer — in   actions   relating  to  covenants,   title,   and  possession   of   rea.' 
property,  1085. 

in  actions  for  debt,  goods  sold,  etc.,  1284. 

in  actions  for  divorce,  484. 

in  actions  in  ejectment,  1125. 

in  actions  in  forcible  and  unlawful  entry  and  detainer,  919. 

in  actions  for  foreclosure  of  mortgages  on  real  property,  717. 

in  actions  for  fraud  and  deceit,  1577. 

in  actions  for  fraudulent  transfers,  etc.,  1590. 

in  actions  in  guaranty  and  suretyship,  1408. 

in  actions  by  innkeepers,  1310. 

in  actions  relating  to  insurance,  1351. 

in  actions  relating  to  irrigation  and  reclamation,  1231. 

in  actions  relating  to  landlord  and  tenant,  1116. 

in  actions  for  libel  and  slander,  384. 

in  actions  for  foreclosure  of  mechanics'  liens,  945. 

in  actions  for  money  had  and  received,  1292. 

in  actions  for  money  lent,  1295. 

in  actions  to  recover  for  money  paid  for  the  benefit  of  another,  129B. 

in  actions  for  negligence  of  carriers  of  property  or  messages,  1476. 

in  actions  for  negligence  of  carriers,  by  persons  other  than  passen- 
gers, 1526. 

in  actions  for  negligence — miscellaneous  cases,  1539. 

in  actions  relating  to  negotiable  instruments,  1376. 

in  actions  to  abate  nuisances,  746. 

in  actions  for  partition,  820. 

in  actions  to  quiet  title,  776. 

in  actions  for  rescission,  1788. 

in  actions  for  sale  and  warranty,  1247. 

in  actions  for  specific  performance,  1765. 

in  action  relating  to  stockholders'  liability,  613. 

in  actions  for  trespass,  758. 

in  actions  relating  to  trusts  and  trustees,  1152. 

in  actions  relating  to  unlawful  monopolies  and  conspiracies,  1553. 

in  actions  relating  to  water-rights  and  riparian  owners,  1208. 

for  work  and  services,  1274. 
confession  and  avoidance  overcomes  general  denial,  70. 
contract  made  different  from  the  one  sued  upon,  71. 
defects  of  the  complaint  remedied  by  the  answer,  68. 
df-iundant  sued  by  a  wrong  name  (form),  52. 

denial  based  upon  lack  of  knowledge  sufficient  to  form  a  belief  (form).  54. 
denials  in  the  conjunctive,  71. 

denial  must  go  to  the  substance  of  the  allegation,  72. 
denial  of  allegations  not  expressly  admitted,  69. 
denials  upon  lack  of  knowledge— New  York  rule,  72. 


2018  INDEX. 

[References  are  ct>  ^ases.     Vol.  I,  pages  1-1238;  Vol.  II,  pagos  1239-1969.] 

Answer  to  complaint  or  petition   (continued). 

denial  of  jurisdiction  of  the  person  (form),  57.  , 

denial  of  jurisdiction  of  subject-matter  (form),  56. 

denial  of  jurisdiction  by  domestic  corporation  (form),  56. 

denial  of  jurisdiction  by  foreign  corporation  (form),  56. 

dilatory  pleas,  67. 

discovery  to  enable  defendant  to  answer,  69. 

duty  of  defendant  to  set  up  all  his  defenses  in  the  first  instance,  67. 

"express  aider"  under  Missouri  practice,  69. 

facts  alleged  by  one  party  not  to  be  pleaded  by  the  other,  69. 

formal  parts  of  answer,  52-58. 

formal  averments  in  answer — by  sole  defendant  (form),  52. 

by  husband  and  wife  suing  jointly  (form),  53. 

by  infant  (form),  53. 

by  insane  person  (form),  54. 
form  of  denial  under  Kansas  statute,  71. 
forms  of  denials  or  admissions,  under  the  code,  71. 
fraud,  showing  of,  under  non  est  factum,  71. 
general  denial  (form),  54. 

of  allegation  not  specifically  admitted,  71. 

not  sufficient  under  the  Arkansas  code — object  of  rule,  71. 

of  one  of  several  causes  of  action  (form),  57. 

of  part  of  pleading  (form),  55. 

and  setting  up  new  matter  (form),  55. 

as  distinguished  from  the  general  issue,  69,  70. 
implied  admissions  control  general  denial,  71. 
information  and  belief,  denial  upon — force  of  rule  prohibiting,  72. 
introductory  part  of  answer,  68. 
language  of  denials,  68. 
matters  provable  under  general  denial,  70. 
motion  for  judgment  on  the  pleadings  proper  when  denials  are  only  of 

conclusions,  1885. 
pleadings  in  a  former  action  made  part  of  the  answer  by  reference,  68. 
special  plea  in  bar  in  the  answer,  68. 
special  pleading  of  defense,  when  necessary,  73. 
specific  denial  (form),  55. 

specific  denials  and  setting  up  new  matter  (form),  55. 
stating  several  defenses  (form),  53. 
stipulation  of  n^rties  as  to  denials,  68. 
stipulation  waiving  answer  (form),  1847. 
traverse  not  required  to  be  expressed  in  negative  words,  72. 
traversing  by  affirmative  averments,  72. 
wrong  name,  defendant  sued  by,  52. 


INDEX.  2019 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-19C9.] 

Appeals.    See,  also,  Writs  of  error. 

acknowledgment  of  service  of  notice  of  appeal  (form),  1914. 
acknowledgment   of    undertaking — under   statutes    requiring   acknowledg- 
ment (form),  1916. 
admission  of  receipt  of  copy  of  notice  (form),  1912. 
affidavit  of  mailing  notice  of  appeal  (form),  1914. 
alternative  method  of  appeal — California,  1936. 
appeal  from  part  of  an  order,  1913. 

appeal  bond  given  in  forcible  entry  and  detainer  proceedings  (form),  1426. 
appeals  in  state  courts,  1908. 

appealability  of  order  punishing  for  contempt,  1866. 
appellant  as  principal  in  appeal  bond  or  undertaking,  1937. 
complaint,  when  not  vulnerable  to  attack  on  appeal,  1935. 
consolidating  various  causes  on  appeal,  stipulation  (form),  1931. 
defenses  in  contempt  proceedings,  1866. 
decisions  on  all  questions  not  required,  1936. 
deficiencies  of  complaint  supplied  by  the  answer,  1936. 
entry  of  a  general  appearance  on  appeal,  1827. 
failure  to  answer — when  deemed  waived,  1936. 
instructions — review  of  on  appeal,  1864. 
intermediate  order — order  fixing  conditions  and  terms  of  undertaking  on 

appeal — North  Dakota,  South  Dakota,  Wisconsin — (form),  1927. 
justification  of  sureties  upon  undertaking  (form),  1915. 
matters  not  considered  on  appeal  from  order,  1934. 
miscellaneous  orders,  stipulations,  and  remittitur  (form),  1926. 
modification  of  judgment  for  excess,  1936. 
motion  to  dismiss— when  should  be  overruled,  1934. 
non-appealable  order — striking  out  pleading,  1936. 
non-prejudicial  ruling,  1935. 
notice  of  appeal — from  judgment  (form),  1911. 

from  part  of  a  judgment  (form),  1912. 

from  judgment  and  order  denying  motion  for  new  trial  (form),  1912. 

from  judgment  granting  insufficient  relief  (form),  1912. 

from  order  denying  motion  for  new  trial  (form),  1913. 

on  questions  of  both  law  and  fact  from  justice's  court  to  the  superior 
court — California  (form),  1913. 
objections  on  motion  stated  in  the  conjunctive,  1864. 
order — dismissing  appeal   (form),  1929. 

dismissing  appeal  from  order  denying  motion  for  new  trial,  for  failure 
to  file  undertaking  (form),  1929. 

dispensing  with  undertaking  on  appeal  from  judgment  or  order  deny- 
ing new  trial— in  probate — (form),  1926. 

of  supreme  court  relating  to  exhibits — action  to  quiet  title,  and   for 
value  of  rents  and  profits,  and  for  restitution  (form),  1930. 

provisional  order  affirming  judgment  on  appeal  (form),  1930. 

denying  motion  to  dismiss  appeal  from  the  judgment  (form),  1929. 


2020  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Appeals  (continued). 

order — granting  nonsuit,  1934. 

striking  out  pleading — reviewable  on  appeal  from  the  judgment,  1934. 
order  or  judgment  nunc  pro  tunc  on   appeal   providing   for   answer  to 

amendment,  1933. 
parties  to  appeal,  1935. 

"adverse  party,"  1935. 
petition  when  liberally  construed  on  appeal,  1934. 
prohibition  not  substitute  for  appeal  or  error,  893. 
statutes  relating  to  appeals  and  writs  of  error,  reference  to,  1908. 
refusal  of  incorrect  charge  not  error,  1864. 
remittitur  (form),  1931. 
reversal  for  fundamental  error,  1935. 
review  of  orders  made  upon  motions,  1934. 
rule  as  to  reversal  of  judgment  for  defects  in  complaint,  1934. 
separate  undertakings,  1935. 
stipulation  to  dismiss  appeal  (form),  1848. 
stipulation  as  to  correctness  of  transcript  on  appeal  and  undertakings  on 

appeal  filed  (form),  1928. 
substitution  of  attorneys  not  perfected,  service  of  notice  of  appeal,  1828. 
^afficiency  of  complaint — when  not  considered,  1934. 
transcript  should  contain  notice  of  appeal,  1936. 
transcript  not  required  to  include  the  undertaking,  1936. 
trial  de  novo  of  equity  case  in  supreme  court,  1936. 
undertakings,  1915. 

classes  of,  1935. 

on  appeal  from  judgment  and  order  denying  new  trial,  1935. 

for  costs  and  damages  [or  charges]  on  appeal  (form),  1915. 

by  surety  corporation   (form),   1916. 

to  stay  execution  of  money  judgment  (form),  1916. 

on  appeal  from  judgment  directing  the  payment  of  money  in  instal- 
ments (form),  1917. 

where  judgment  directs  delivery  of  documents  or  other  personal  prop- 
erty (form),  1918. 

where  judgment  directs  sale  or  delivery  of  real  property  (form),  1918. 

where  appeal  is  had  from  an  order  vacating  writ  of  attachment  or 
injunction  (form),  1919. 
waiver  of  undertaking  on  appeal  (form),  1928. 
waiver  of  deposit  in  lieu  of  undertaking  (form),  1928. 

Appearance. 

acknowledgment  of  service  (form),  1823. 

appearance  to  merits,  1826. 

asking  permission  to  plead  merits,  1826. 

change  of  venue,  right  to,  not  affected  by  special  appearance,  1822. 

effect  of  general  appearance,  1826. 

effect  of  request  for  time  to  answer,  1826. 


INDEX.  2021 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Appearance  (continued). 

entry  of  a  general  appearance  on  appeal,  1827. 

general  guardian,  duty  to  appear  and  defend,  432,  440. 

jurisdiction  acquired  upon  appearance  of  general  guardian,  433. 

notice  of  general  appearance  (form)    1823. 

notice  of  special  appearance  (form),  1823. 

setting    cause    for   trial,    1826. 

statutory  provisions  as  to  general  appearance,  1827. 

Appraisal.    See  Homesteads,  appraisal  of. 

Apprentice.     See  Master. 

Arbitration  and  award. 

agreement  to  submit  to  arbitration — Minnesota  statutory  form  (form),  997. 
agreement  where  arbitrators  appointed  are  authorized  to  select  a  third 

arbitrator,  in  case  agreement  can  not  otherwise  be  reached  (form), 

998. 
answer  that   arbitrators   failed   to   consider   matters   submitted   to   them 

(form),  290. 
arbitration  and  award  generally,  331,  994. 
award  of  arbitrators  (form),  1001. 
defense  of  arbitration  and  award  (form),  290. 
judgment  upon  award  (form),  1002. 
oath  of  arbitrators  (form),  1001. 

order  granting  motion  to  vacate  and  set  aside  judgment  (form),  1002. 
submission  to  arbitration,  994. 
submission  to  arbitration  where  arbitrators  are  not  empowered  to  name 

third  arbitrator  (form),  998. 

Arrest  and  bail. 

arrest  and  bail  generally,  1617. 

grounds  of  arrest  in  civil  cases,  1617. 

affidavit  to  obtain  order  for  arrest  in  civil  action  (form),  347. 

complaint  as  aider  of  affidavit,  1622. 

complaint  must  charge  fraud  before  mesne  process  for  arrest  may  be 

issued,  1622. 
constitutionality  of  provisions  as  to  civil  arrest,  1622. 
defense  of  justification  of  arrest  under  civil  process  (form),  342. 
order  for  arrest  in  civil  action  (form),  348. 
proceedings  against  bail  in  civil  arrest,  1621. 
right  governed  by  law  of  place  of  action,  1622. 
sheriff's  return  to  order  of  arrest  (form),  348. 
undertaking  and  security  by  plaintiff  before  order  for  arrest  made  (form), 

347. 
Jury's  Pi.— liS 


2022  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Assault,  civil  action  for. 

action  for  injury  to  the  wife — husband  necessary  party  defendant,  368. 
complaint — action  by  husband  for  assault  on  wife  (form),  362. 
action  to  recover  damages  for  personal  injuries  (form),  362. 
allegation  as  to  injuries,  etc.,  368. 
allegation  of  special  damage — when  unnecessary,  368. 
damages  for  future  mental  pain,  368. 

defense — justification  against  trespass  or  attempted  trespass  (form),  364. 
plaintiff's  injuries  inflicted  by  defendant  while  defendant  was  acting 

in  self-defense  (form),  364. 
acts  to  preserve  the  peace  (form),  366. 
injuries   inflicted  while  acting  in  defense  of  possession  of   dwelling 

(form),  365. 
injuries  inflicted  in  self-defense,  368. 

justification  as  special  defense  in  civil  suit  for  assault,  etc.,  368. 
removal  of  plaintiff  from  railway  car  for  non-payment  of  fare  (form), 

366. 
resistance  of  entry  into  dwelling  (form),  365. 
evidence  of  defendant's  wealth — when  admissible,  368. 
items  of  necessary  expense  not  pleadable  as  separate  causes,  368. 
judgment  for  plaintiff  upon  verdict — in  action  to  recover  damages   for 
personal  injuries  (form),  367. 

Assignment  of  chose  in  action. 

allegation  of  assignment  necessary,  182. 

assignee  of  right  to  money  does  not  acquire  vendor's  lien,  1105. 

assignment  of  choses  in  action  or  defenses — code  rules,  182. 

assignment  of  thing  in  action  not  to  prejudice  defense — exception,  180. 

averment  of  assignment  of  claim  (form),  181. 

causes  arising  in  tort  which  survive  to  personal  representative,  183. 

claim  for  tort — Wisconsin  rule,  183. 

denial  of  assignment  of  cause  of  action  (form),  1602. 

intermediate  assignments  where  bank  is  in  liquidation,  183 

partial  assignments,  182. 

rule  as  to  "splitting"  of  demands,  182. 

statute,  when  not  pleadable  against  an  assignment  of  cause  of  action,  433. 

Assignments  and  assignees.    See,  also,  Fraudulent  transfers  and  assignments, 
action  by  assignee  of  lien,  1417. 

complaint — action  by  an  assignee,  for  price  of  stock  and  fixtures  of  a 
store  payable  in  instalments  (form),  1282. 
action  on  an  assigned  debt  due  to  a  partnership  (form),  1282. 
by  assignee  for  creditors  (form),  15. 
by  assignee  of  claim  or  demand  (form),  15. 
effect  of  assignment  in  attachment  proceedings,  1699. 


INDEX.  2023 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Assumpsit.     See  Debt,  actions  for;  Taxes  and  revenue,  etc.;  Money  had  and 
received;  Money  lent;  Money  paid  for  the  benefit  of  another. 

Assumption  of  risk,  defense  of.     See,  also,  Negligence,  etc.;  Death  by  wrong- 
ful act. 
in  action  for  death  by  wrongful  act,  1505. 
in  actions  relating  to  employer's  liability,  1460. 

Attachment  and  garnishment. 

action  upon  undertaking  in  attachment,  1686. 
affidavit — attachment,  1680. 

attachment    against    residents — Alaska,    Arizona,    California,    Hawaii, 

Idaho,  Oregon,  Utah  (form),  1688. 
attachment  against  resident — Nebraska  (form),  1689. 
attachment  against  defendant  about  to  leave  the  state  with  intent  to 

defraud  creditors  (form),  1691. 
attachment    against   non-resident,    where   the    cause    of   action   is    to 
recover  damages  arising  from  an  injury  to  property  in  the  state, 
in  consequence  of  fraud,  negligence,  or  other  wrongful  act  (form), 
1690. 
attachment  against  non-resident,  for  unliquidated  damages   ascertain- 
able under  a  contract  (form),  1690. 
attachment  against  non-resident — action  upon  contract  (form),  1689. 
answer  of  garnishee  to  the  writ  (form),  1696. 
attachment  of  crops  under  mortgage,  1699. 
certificate  by  sheriff  of  execution  of  writ  of  attachment  in  garnishment 

proceeding  (form),  1695. 
interest  not  required  to  be  stated  in  affidavit,  1700. 
interplea  in  attachment,  1701. 

intervention  in  attachment — Texas  practice  as  to,  1701. 
judgment  against  garnishee,  1701. 
junior  attaching  creditor  may  intervene,  1701. 
liability  upon  undertaking,  1699. 
limitation  upon  right  to  attachment,  1699. 
money  lost  in  gambling,  1699. 

motion  to  quash  writ  of  attachment — special  appearance  (form),  1696. 
notice  of  garnishment  or  attachment  of  moneys,  etc.,  owing  or  belonging 

to  defendant,  (form),  1695. 
oath  of  sureties  endorsed  upon  or  attached  to  undertaking  (form),  1693. 
order  discharging  an  attachment  improperly  or  irregularly  issued  (form), 
1697. 
releasing  attachment  (form),  1697. 
reviving  proceedings  against   non-resident  defendant,   and   continuing 

attachment  proceeding  (form),  1698. 
for  the  sale  of  attached  property  (form),  1697. 
payee  not  designated  in  bond — effect  of,  1699. 
prohibition — when  will  not  lie  to  arrest  garnishment  proceedings,  894. 


2024  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Attachment  and  garnishment  (continued). 

property  subject  to  attachment — corporation  stock,  1699. 

receipt  in  satisfaction  of  claim,  and  directing  release  of  goods  attached 

(form),  1696. 
return  of  sheriff  to  writ  of  attachment  (form),  1695. 
security  for  indebtedness — omission  of  statement,  1700. 
undertaking  on  attachment   (form),  1692. 
undertaking  given  to  procure  an  order  to  discharge  an  attachment  (form), 

1693. 
when  and  in  what  cases  attachment  may  issue,  1673. 
writ  of  attachment  (form),  1694. 

Attorney-general.     See  State,  actions  instituted  by  attorney-general,  or  by  or 
against  the  state. 

Attp-neys,  disbarment  of.     See  Disbarment  of  attorneys. 

Attorneys,  substitution  of.     See  Substitution  of  attorneys. 

Awa-d.     See  Arbitration  and  award. 

Bail.     See  Arrest  and  bail. 

Bailment  or  deposit. 

deposit,  kinds  of,  1311. 

complaint  for  damages  against  a  bailee  of  goods  (form),  1318. 

defense  of  adverse  claim,  1319. 

defense  that  thing  deposited  is  held  as  a  pledge  (form),  1319. 

demand  is  necessary  to  charge  depositary  with  breach  of  duty,  1312 

denial  of  bailment  (form),  1318. 

deposit  for  exchange,  1312. 

depositary's  liability  for  negligence,  1314. 

depositary's  obligation  to  deliver  on  demand,  1312. 

depositor  must  indemnify  depositary,  1314. 

exchange  defined,  1311. 

endorsement  on  negotiable  receipt  of  property  delivered,  1316. 

joint  deposits  by  two  or  more  persons,  1313. 

notice  to  owner  of  adverse  proceedings,  1312. 

notice  by  depositary  to  owner  of  thing  wrongfully  detained,  1313. 

Bankruptcy,  discharge  in,  as  defense. 

answer  to  petition  pleading  discharge  in  bankruptcy  that  plaintiff  fraud- 
ulently failed  to  list  property  as  part  of  assets  (form),  267. 
defense  of  discharge  in  bankruptcy  (form),  267. 
plea  of  discharge  in  bankruptcy,  277. 

Battery.     See  Assault,  civil  action  for. 

Bill  of  exceptions.     See  Exceptions. 


INDEX.  2025 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  n,  pages  1239-1969.] 

Bill  of  particulars. 

affidavit  for  order  for  inspection  of  account  (or  of  a  paper),  and  to  take  a 

copy  thereof  (form),  1851. 
demand  for  bill  by  defendant,  1852. 
demand  for  a  copy  of  an  account  (form),  1852. 
demand  to  have  inspection  of  an  original  instrument  (form),  1851. 
failure  to  file  upon  demand — effect  of,  1852. 

failure  to  deliver  bill  within  statutory  time — discretion  of  court,  1853. 
motion  to  make  bill  more  specific,  1852. 
notice  of  motion  for  an  order  for  inspection  of  a  paper  (or  account,  or 

entries),  and  for  a  copy  thereof  (form),  1850. 
order  directing  party  to  furnish  bill  of  particulars  (form),  1852. 
purpose  of  bill  of  particulars,  1852. 
time  to  answer  extended  by  motion,  1853. 

Bills.     See  Negotiable  instruments. 

Boats.     See  Steamers,  vessels,  and  boats. 

Bonds  and  undertakings.    See,  also,  Bonds  and  undertakings,  actions  upon, 
approval  of  bond,  endorsed  thereon  (form),  1420. 
bonds  on  writs  of  error,  1920,  1921. 

bond  of  commissioner  given  on  sale  of  mortgaged  property  (form),  720. 
bond  to  indemnify  sheriff  (form),  <S81. 

bond  for  unconditional  payment  of  money — common  form  (form),  1422. 
bond  given  in  replevin  (form),  1427. 
exception  to  sureties  on  (bail)  bond  (form),  1420. 
forms  of  bonds,  endorsements,  etc.,  1418. 

notice  of  justification  of  sureties  on  (bail)  bond  (form),  1421. 
oath  of  officer  on  qualifying  (form),  1420. 
official  bond — common  form  (form),  1418. 

of  city  clerk  (form),  1419. 
undertaking  on  appeal,  1915-1919. 

by  surety  company,  1916. 
undertaking  entered  into  by  surety  company  on  appeal  from  justice  court, 

from  judgment  directing  payment  of  money  (form),  1425. 
undertaking   in   replevin — for   the   return   to   the   defendant   of  property 
taken  (form),  1633. 

on  behalf  of  plaintiff,  given  on  claim  made  by  third  person  to  property 
attached  (form),  1634. 

to  indemnify  sheriff  (form),  1635. 

Bonds  and   undertakings,  actions  upon.     See,  also.   Sheriff's  and  constables, 
actions  by  and  against;  Joinder  or  uniting  of  causes, 
action  by  county  against  sureties,  650. 
action  on  bond — county  as  party,  649. 

action  upon  bond  of  executor  or  former  administrator  of  same  estate,  1011. 
action  ui:on  guardianship  bond,  1068. 


2026  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238:  Vol.  II,  pages  1239-1969.] 

Bonds  and  undertakings,  actions  upon  (continued), 
action  upon  replevin  bond,  1650. 

assignee  of  judgment,  when  can  not  recover  on  undertaking,  1431. 
complaint — in  action  against  sureties,  650. 
in  action  upon  bail  bond,  1431. 

in  action  by  surviving  obligee  on  joint  bond  (form),  1423. 
in  action  on  bond  other  than  for  payment  of  money  (form),  1423. 
in  action  on  bond  for  the  fidelity  of  an  employee  (form),  1423. 
in  action  against  surety  company  on  appeal  bond  (form),  1424. 
in  action  on  supersedeas  bond  (form),  1429. 
defense  to  action  brought  against  board  of  public  works  and  other  defend- 
ants as  sureties  upon  the  official  bonds  of  the  members  of  said 
board,  showing  non-negligence  upon  the  part  of  the  board  and  its 
inability  for  lack  of  funds  to  make  repairs  to  damaged  street  or 
sidewalk  (form),  664. 
defense  of  failure  of  consideration  (form),  1430. 
demand  in  action  against  surety,  1431. 

sufficient  pleading  of,  1431. 
essentials  of  complaint  in  action  upon  a  bond,  1431. 
filing  of  bond  must  be  pleaded,  1431. 
forms  of  procedure  where  leave  to  sue  an  officer  of  the  court  must  first 

be  obtained,  1421. 
liability  of  sureties  for  torts  of  officers,  671. 
non-payment  of  damages  a  necessary  allegation,  1431. 
order  granting  leave  to  sue  on  the  bond  of  an  executor  [or  administral  or] 

(form),  1422. 
petition  for  permission  to  bring  an  action  upon  the  bond  of  an  executor 

[or  administrator]   (form),  1421. 
undertakings  in  attachment  and  garnishment,  1692. 

Boycotts.     See,  also,  Unlawful  strikes;  Conspiracies  and  monopolies, 
boycotts  generally,  1555. 

complaint — against  labor  union,  to  restrain  interference  with  conduct  of 
business  (form),  1555. 
to  enjoin  a  combination  and  conspiracy  to  boycott,  where  known  and 
fictitious  parties  are  sued  (form),  1560. 
decree  in  an  action  to  enjoin  a  combination  and  conspiracy  to  boycott 
(form),  1561. 

Breach  of  contracts  of  sale  and  purchase.     See,  also,  Sale  and  purchase, 
complaint — for  breach  of  contract  of  sale,  1262. 

for  breach  of  contract  of  sale,  and  to  recover  for  goods  sold  (form), 

1251. 
for  breach  of  contract  to  furnish  engine  and  engineer  at  opening  of 

threshing  season  (form),  1252. 
for  breach  of  contract  to  purchase  stock  in  default  of  corporation  to 
pay  dividends  (form),  1254. 


INDEX.  2027 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-19CJ.] 

Breach  of  contracts  of  sale  and  purchase  (continued). 

complaint — for  breach  of  contract  in  furnishing  irrigating  plant   (form), 
1253. 
for  breach  of  an  option  contract  to  repurchase  stock  (form),  1255. 
for  breach  of  contract  for  purchase  of  fruit  (form),  1256. 
by  real  estate  agent,  for  commissions  for  sale  executed  (form),  1329. 
cross-complaint  for  damages  (form),  1259. 
defense — failure  of  consideration,  1248. 

breach  of  contract  to  feed  and  care  for  animals,  and  cross-complaint 

for  damages  (form),  1259. 
non-compliance  with  contract  (form),  1259. 
judgment  for  plaintiff — damages  for  breach  of  contract  to  purchase  (form), 
1261. 

Breach  of  promise  of  marriage. 

complaint — breach  of  promise  of  marriage  (form),  1437. 

marriage  with  another  (form),  1438. 
damages  for  breach  of  promise — measure  of,  1723. 
defense  alleging  bad  character  of  plaintiff  (form),  1438. 
denial  of  promise  (form),  1438. 
denial  of  breach  (form),  1438. 

Builders'  contracts. 

cause  of  action  for  extra  work  and  materials,  1093. 

complaint — on  builder's  contract,  with  claim  for  extra  work  for  alterations 
(form),  1270. 
for  breach  of  builder's  contract  (form),  1090. 

to  recover  final  payment  upon  building  contract,  setting  forth  reasons 
for  delay  of  completion,  and  averring  wrongful  withholding  by 
architect  of  certificate  of  completion  (form),  1091. 
defenses — (1)  denials,  (2)  averring  destruction  of  buildings  before  com- 
pletion, (3)  denial  of  reasonable  value  under  common  count 
(form),  1094. 
defense  that  certificate  of  architect  or  engineer  was  not  obtained  (form), 
1094. 

Building  association.     See  Corporations,  actions  relating  to  management  and 
internal  affairs. 

Cancelation  of  instruments. 

averments  as  to  claims  of  defendants  under  forged  deed  (form),  1796. 
averments  as  to  injury  resulting  from  claims  under  a  forged  deed,  1797. 
cancelation — distinguished  from  reformation — pleading,  1802. 

in  part,  1792. 

of  instrument  obviously  void,  1792. 

when  may  be  adjudged,  1792. 
complaint — to  annul  a  contract  (form),  1792. 

to  quiet  title  and  to  cancel  alleged  forged  deed  (form),  772. 


2028  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Cancelation  of  instruments  (continued). 

defense  that  instrument  was  executed  under  undue  influence — action  t» 

cancel  deed  (form),  1799. 
disclaimer  in  action  for  cancelation  of  forged  deed  (form),  776. 
extinguishment  by  destruction  or  cancelation,  512. 
forged  deed  in  action  to  quiet  title,  793. 
judgment    (or   decree) — confirming   deed,   and   quieting   defendant's   title 

thereunder— action  to  cancel  deed  alleged  to  have  been  executed 

under  undue  influence   (form),  1800. 
annulling  deed,   and   quieting  plaintiff's   title   as   against  the   same — 

action  for  cancelation  of  forged  deed  (form),  1801. 
parties  in  an  action  to  cancel  deed  of  trust,  1802. 
prayer  for  cancelation,  injunction,  etc.  (form),  1798. 
supplemental  complaint  in  action,  commenced  by  special  administrator* 

and  continued  by  executors,  to  quiet  title  and  for  cancelation  ot 

forged  deed  (form),  1794. 

Carriers.     See,  also,  Negligence  of  carriers;  Death  by  wrongful  act. 
damages  for  breach  of  carriers'  obligations,  1724. 
detriment  caused  by  carrier's  delay  in  delivery,  1725. 
exemplary  damages  for  malicious  ejection,  1743. 

Causes  of  action,  uniting  of.     See  Joinder, 
cause  of  action  defined,  7. 

Causes  of  action  upon  contract  and  in  assumpsit,  146. 

Certificates,  orders,  etc.,  1805. 

Certification  of  public  records. 

certification  of  public  records  generally,  1937. 

authentication — by  copy  of  a  judicial  record   (form),  1940. 

by  copy  of  a  judicial  record  of  a  foreign  country  (form),  1940. 

by  copy  of  non-judicial  records  (form),  1938. 

of  document  in  a  sister  state  or  territory  (form),  1941. 

of  document  in  the  office  of  a  department  of  the  United  States  (formK 

1942. 
of  public  record  of  a  private  writing  (form),  1942. 
of  records  and  judicial  proceedings  of  a  court  of  record  of  a  sister 

state  or  territory  of  the  United  States  (form),  1937. 
certificate — of  consular  agent  (form),  1941. 
of  custodian  (form),  1941,  1942. 
of  justice  (form),  1941. 
of  presiding  judge  (form),  1939. 
of  recorder  or  registrar  (form),  1942. 
of  secretary  of  state  (form),  1939,  1941. 
to  genuineness  of  signature  (form),  1938. 
to  signature  and  attestation  of  county  clerk  (form),  1943. 


INDEX.  2029 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Certification  of  public  records  (continued). 

certificate  to  genuineness  of  signature  of  superior  judge — annexed  to  cer« 

tificate  (form),  1939. 
certified  copy  of  order  (form),  1942. 

Certiorari  [or  review]. 

endorsement  of  allowance  of  writ  (form),  858. 

facts  brought  up  for  review,  862. 

judgment  dismissing  application  for  writ  of  certiorari  (form).  861. 

judgment  for  defendants  (form),  860. 

no  adequate  remedy  at  law,  862. 

notice  of  application  for  writ  (form),  857. 

petition  for  writ  of  review,  or  certiorari  (form),  855. 

notice  or  order  to  show  cause,  853. 

showing  to  be  made  therein,  861. 
return  of  service  of  writ  of  review  on  a  defendant  (form),  859. 
statutes  construed,  862. 
to  whom  writ  is  directed — return,  854. 
writ  of  certiorari  to  a  justice  of  the  peace  (form),  857. 
writ  of  review — when  granted,  851. 
writ  of  review  to  board  of  supervisors  (form),  858. 

Change  of  name. 

Order  authorizing  change — upon  petition  by  guardian  (form),  993. 

upon  petition  of  a  corporation  (form),  993. 
petition  for  change  of  name — by  corporation  (form),  992. 

by  person  of  full  age  (form),  991. 

by  person  or  corporation,  986. 

Change  of  venue.     See,  also,  Venue;  Removal  of  causes  from  state  to  federal 
courts, 
acknowledgment  of  service  of  notice,  with  filing  endorsement  (form),  1813. 
affidavit — of  merits  (form),  1815. 

of  merits,  by  counsel,  1821. 

of  residence  (form),  1815. 

of  residence  and  of  merits  (form),  1815. 

of  officer  as  to  "residence"  of  corporation,  1821. 
Arkansas  statute,  as  to  change  of  venue,  construed,  1820. 
demand  for  change  of  place  of  trial  (form),  1814. 
demand  and  affidavit  essential,  1821. 

divorce — change  of  venue  to  where  real  action  is  joined,  1820. 
facts  of  defense,  when  not  required  to  be  set  forth,  1821. 
jurisdiction  conferred  by  application  for  change,  1820. 
mandamus  to  secure  change  of  venue,  1822. 
motion  for  change  of  place  of  trial  (form),  1814. 
notice  of  motion  for  change  of  place  of  trial  (form),  1813. 
petition  for  change  of  venut  (form),  1816. 


2030  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-123S;  Vol.  II,  pages  1239-1969.] 

Change  of  venue  (continued). 

procedure  for  change  of  venue  in  state  courts,  1813. 
right  not  affected  by  special  appearance,  1822. 

Charter-party  and  maritime  agreements. 

complaint — by  ship-owner  against  charterer,  for  freight  (form),  1435. 

by  ship-owner  for  damages  and  demurrage,  for  failure  to  load  goods 

on  ship  (form),  1436. 
for  damages  for  abandoning  voyage  (form),  1436. 

Chattel  mortgages  and  pledges. 

assignee  of  debt — right  of,  to  foreclose  lien,  1417. 
complaint — to  recover  for  loss  of  pledge  (form),  1413. 
to  recover  for  injury  to  pledge  (form),  1414. 
by  pledgeor  in  nature  of  specific  performance,  1417. 
by  pledgeor  of  note  as  collateral,  against  pledgee  (form),  1414. 
for  foreclosure  of  pledge  (form),  1413. 

for  an  accounting  concerning  pledged   goods,   and   for  an   injunction 
restraining   the   sale   of  goods   where   amount  due  is   in   dispute 
(form),  1415. 
for  foreclosure  of  chattel  mortgage  (form),  1410. 

for    foreclosure  of  chattel  mortgage  for  default  in  making  payments 
of  instalments  and  praying  for  appointment  of  receiver   (form), 
1411. 
continuance  of  lien,  1417. 

decree  of  foreclosure  of  chattel  mortgage  and  order  of  sale,  and  appoint- 
ing commissioner  (form),  1415. 
plea  of  tender,  1417. 
when  lien  is  lost,  1417. 
when  seller  may  rescind  sale  or  enforce  his  lien,  1410. 

Checks.     See  Negotiable  instruments. 

Citation. 

acknowledgment  of  service  of  citation  (form),  1808. 
citation — common  form  (form),  1807. 

to  executors,  etc.,  1808. 

order  for,  to  executor,  upon  application  by  creditor  (form),  1807. 

order  sustaining  demurrer  to  petition  and  discharging  (form),  1809. 

Cities  as  municipalities,  city  boards  and  officers,  actions  by  and  against.  See, 
also,  Bonds  and  undertakings,  actions  upon;  Municipal  corpora- 
tions, actions  by  and  against. 

allegation  charging  notice  of  obstruction,  669. 

averments  as  to  defective  sidewalk,  669. 

change  of  street  grade — damages  and  remedies,  670. 

claim  against  city  (or  town)  for  personal  injuries — Wisconsin  (form),  652. 


INDEX.  2031 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Cities,  etc.,  city  boards  and  officers,  actions  by  and  against   (continued), 
complaint — against  city  officers  and  their  sureties  to  recover  damages  for 
injury  to  an  automobile  (form),  655. 
by  municipal  corporation  to  recover  percentage  of  gross  earnings  of 
telephone  corporation — first  cause  of  action  stated  upon  contract, 
and  second  upon  quantum  meruit  (form),  661. 
by  next  friend  against  a  municipal  corporation  and  others  for  personal 
injuries  (form),  659. 
complaint   against   municipal   corporation — for   damage   done   by    mob   or 
riot  (form),  654. 
for  injuries  received — negligence  of  city,  670. 
for  neglect  of  excavation  in  street  (form),  653. 

upon  warrants  and  to  set  aside  and  vacate  bonding  proceedings  and  to 
cancel  issue  of  bonds  therein  (form),  657. 
defenses — (1)  denials,  (2)  bar  of  statute,  (3)  laches,  (4)  voluntary  aban- 
donment of  the  office  by  plaintiff — action  by  police  officer  for  rein- 
statement  and   to   vacate   and   rescind   action   of   police   commis- 
sioners dismissing  him  (form),  665. 
defense    that    property    occupied    by    defendant   is    a   public    street — 
action  to  enjoin  municipal  board  of  public  works  from  demolishing 
buildings  (form),  662. 
defense  of  lack  of  funds  for  repair  of  sidewalks,  671. 
enforcement  of  ordinances — liability  of  city,  670. 
filing  of  notice  and  demand  as  a  condition  precedent,  668. 
Inability  to  give  notice,  669. 
Injunction  to  prevent  threatened  injury,  670. 
notice  and  demand  as  condition  precedent  to  action,  652. 
notice  to  city  (or  town)  of  injuries  caused  by  defective  sidewalk  (form), 

652. 
statutory  notice  of  injury,  668. 

Civil  damage  acts. 

averment  as  to  kind  of  liquor  sold  unnecessary,  1615. 

compensatory  damages,  1616. 

complaint  for  civil  damages  for  selling  intoxicating  liquor  to  a  minor  son 

(form),  1614. 
contributory  negligence,  1616. 
exemplary  damages,  1616. 
nature  of  acts,  1615. 
parties  to  action,  1615. 
right  of  action  under  civil  damage  laws,  1615. 

Claim  and  delivery  of  personal  property.     See  Replevin. 

Code  system  in  general,  2. 

Commitments. 

refusing  to  answer  question — recital  in  commitment  for  contempt,  1866. 


2032  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Common-law  counts.     See  Counts  in  pleading;  Debt,  actions  for. 

Compensatory  and  specific  relief.    See  Damages;  Specific  performance. 

Comp'aint  [or  petition].     See,  also,  the  separate  headings, 
complaint — designation  of  parts,  generally,  12. 
formal  parts,  13-20. 
general  form  of,  13. 

plaintiff  suing  on  behalf  of  himself  and  others  (form),  14. 
what  must  contain,  11. 

in  actions  for  abduction  and  seduction,  393. 
in  actions  relating  to  agency,  1325. 
in  actions  for  alienating  affections,  401. 
in  actions  for  annulment  of  marriage,  448. 
in  civil  actions  for  assault,  etc.,  362. 
in  action  against  bailee  of  goods,  1318. 
in  actions  upon  bonds  and  undertakings,  1422. 
in  actions  against  boycotts  and  unlawful  strikes,  1555. 
in  actions  for  breach  of  contract  of  sale  and  purchase,  1251. 
in  actions  relating  to  builder's  contracts,  1090. 
in  actions  for  breach  of  promise  of  marriage,  1437. 
in  actions  for  cancelation  of  instruments,  1792. 
in  actions  relating  to  charter-party,  1435. 
in  actions  against  cities,  etc.,  653. 
in  actions  under  civil  damage  acts,  1614. 
in  action  to  condemn,  972. 
in  actions  for  conversion  and  trover,  1595. 
in  actions  relating  to  private  corporations,  582. 
in  actions  relating  to  covenants,  title  and  possession  of  real  property, 

1080. 
in  actions  for  death  by  wrongful  act,  1494. 
'in  actions  for  debt,  1277. 
in  ejectment,  1119. 
in  employer's  liability  cases,  1449. 

in  actions  by  and  against  executors  and  administrators,  1019. 
in  actions  for  false  imprisonment,  338. 
in  actions  for  fraud  and  deceit,  1567. 
in  actions  for  fraudulent  transfers,  etc.,  1584. 
in  forcible  and  unlawful  entry  and  detainer,  917. 
in  foreclosure  of  chattel  mortgages,  1410. 
in  foreclosure  of  mortgages  on  real  property,  705. 
in  foreclosure  of  mechanics'  liens,  940. 
in  guaranty  and  suretyship,  1399. 
for  injunctions,  1659. 
in  actions  by  innkeepers,  1308. 
in  actions  relating  to  insurance,  1336. 
in  actions  relating  to  irrigation  and  reclamation,  1225. 


INDEX.  2033 

[References  are  to  pages.     Vol.  I.  pages  1-123S;  Vol.  II,  pages  1239-1969.] 

Complaint  [or  petition]   (continued). 

in  actions  upon  judgments,  1441. 

In  actions  relating  to  landlord  and  tenant,  1111. 

In  actions  for  libel  and  slander,  373. 

in  actions  for  malicious  prosecution,  350. 

in  actions  relating  to  master  and  apprentice,  553. 

in  actions  respecting  mining  claims,  806. 
I  In  actions  for  money  had  and  received,  1289. 

in  actions  for  money  lent,  1294. 

in  actions  against  unlawful  monopolies  and  conspiracies,  1550. 

in  actions  for  negligence — miscellaneous  cases,  1530. 

in  actions  for  negligence  of  carriers — injuries  to  passengers  not  result- 
ing in  death,  1484. 

in  actions  for  negligence  of  carriers— by  persons  other  than  passen- 
gers, 1521. 

in  actions  for  negligence  of  carriers  of  property  or  messages,  1472. 

in  actions  for  negligence  of  persons  owing  a  contractual  duty,  1461. 

in  actions  upon  negotiable  instruments,  1360. 

in  actions  to  abate  nuisances  744, 

in  actions  for  partition,  819. 

in  partnership  or  accounting,  1320. 

in  actions  for  penalties  and  forfeitures,  1753. 

in  actions  for  hiring  of  personal  property,  1300. 

in  actions  for    injuries    to   personal    property,    and    for   the    unlawful 
detention  thereof,  1563. 

in  contests  in  probate,  1041. 

in  actions  relating  to  the  property  of  husband  and  wife,  515. 

in  actions  to  quiet  title,  770. 

in  quo  warranto  proceedings,  830. 

in  actions  by  and  against  receivers,  1709. 

in  actions  for  revision  or  reformation  of  contracts,  1776. 

in  actions  for  rescission,  1783. 

in  sale  and  warranty,  1240. 

in  actions  by  and  against  sheriffs  and  constables,  671. 

in  actions  for  slander  of  title,  1547. 

in  actions  by  and  against  sole  traders,  1073. 

in  specific  performance,  1760. 

in  actions  upon  stockholders'  liability,  609. 

in  actions  for  support  of  wife,  501. 

in  action  relating  to  trade-marks,  etc.,  1612. 

in  actions  for  trespass,  755. 

in  actions  relating  to  trusts  and  trustees,  1141. 

in  actions  between  vendor  and  vendee,  1102. 

in  actions  relating  to  water-rights  and  riparian  owners,  1180. 

in  actions  for  work  and  services,  1264. 
croos-complaint  in  specific  performance,  1765. 


2034  INDEX- 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Complaint  [or  petition]   (continued). 

grounds  of  demurrer  to  complaint,  39. 

inconsistent   pleas    under   the   Missouri    practice.     For   inconsistency    in 

defenses,  see  Defenses,  145. 
nature  of  action  determined  by  the  complaint,  127. 
petition  in  proceedings  for  change  of  name,  991. 
petition,  etc.,  in  certiorari  or  review,  855. 
receivers — petitions  and  orders  for  leave  to  sue,  1706. 
verdict — defective  statement  of  cause  cured  by,  1883. 

Conclusion  of  law  in  pleading. 

conclusions  of  law — generally,  30. 
not  admitted  by  demurrer,  63. 
distinction  between  ultimate  fact  and  conclusion  of  law,  30. 

Conclusions  of  law  in  the  decision.     See  Findings  of  fact  and  conclusions  of 
law. 

Condemnation  proceedings.     See  Eminent  domain. 

Conditions  precedent,  failure  to  perform,  as  defense. 

averment  of  performance  of  conditions  precedent  (form),  170. 
defense  (form),  313. 

of  failure  to  perform  conditions  precedent,  313. 

of  non-compliance,  333. 

of  non-performance   of  conditions   precedent   upon   builder's   contract 
(form),  313. 
denial  of  performance  of  conditions  (form),  170. 
pleading  conditions  precedent — general  rule,  169,  176. 
waiver — by  defendant,  333. 

of  conditions  of  contract,  176. 

to  be  pleaded,  334. 

Confession  and  avoidance.     See  Answer  to  complaint. 

Confession  of  judgment.     See  Judgments. 

Consideration,  absence  of,  as  defense. 

defense  of  no  consideration  (form),  306. 
want  of  consideration,  331. 

Consistency    in    pleading.      See    Defenses;     Definiteness    and    certainty    in 
pleading. 

Consolidating  of  causes.     See,  also,  Trials. 

discretionary  authority  of  courts  of  equity  to  consolidate  causes,  1865. 
effect  of  consolidation  as  to  issues  and  pleadings,  1865. 

Conspiracies.     See  Monopolies  and  conspiracies. 


INDEX.  2035 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Constables.     See  Sheriffs  and  constables. 

Constitutional  rights.     See  Unlawful  discriminations,  actions  based  upon. 

Construction. 

construction  of  code  provision  adopted  from  another  state,  728. 

construction  of  pleadings  generally,  163. 

complaint  not  tested  by  demurrer,  175. 

formal  averments  omitted,  175. 

inconsistent  and  self-contradictory  answer,  176. 

inconsistent  allegations  in  a  reply,  176. 

pleading  construed  according  to  its  entire  scope,  176. 

reference  to  construction  under  Oklahoma  procedure,  176. 

rule  as  to  pleadings  construed  most  strongly  against  the  pleader,  176. 

rule  particularly  applicable  where  default  is  entered,  176. 

rule  as  to  liberal  construction  of  pleadings,  175. 

Contempt,  proceedings  to  punish  for.     See,  also,  Witnesses. 

affidavit — in  action  at  law  to  prevent  usurpation  of  office  (form),  1860. 
in  proceedings  for  punishing  a  contempt  of  court  (form),  1860. 
omission  of  cured  by  answer,  1866. 
upon  information  and  belief,  1866. 
where  required,  is  jurisdictional,  1866. 
appealability  of  order,  1866. 
application  to  punish  for  contempt,  1866. 
defense  of  truth  of  charge  not  applicable  as  in  libel,  1866. 
disobedience  by  judge  of  writs  of  supersedeas  of  higher  court,  1865. 
judgment  in  a  proceeding  for  a  contempt  of  court  against  a  witness  for 
refusing  to  answer  a  relevant  and  material  question  (form),  1862. 
judgment  must  specify  the  contempt,  1866. 
jurisdiction  to  punish  for  contempt,  1865. 
jurisdiction  of  judges  at  chambers,  1865. 
motion  for  warrant  of  arrest  in  proceedings  for  contempt  for  neglecting 

and  refusing  to  obey  a  judgment  (form),  1861. 
order  to  show  cause,  made  on  the  filing  of  affidavit  charging  contempt 

(form),  1861. 
proceeding  before  United  States  commissioner,  1865. 
proceeding  in  vacation,  1865. 

prohibition  to  restrain  punishment  under  void  order,  893. 
recitals  and  judgment  for  a  contempt  of  court  committed  in  the  presence 

of  the  court  (form),  1862. 
refusing  to  answer  question — recital  in  commitment,  1866. 
state  as  party,  1866. 

warrant  of  attachment  to  be  issued  in  proceedings  to  punish  for  a  con- 
tempt of  court  (form),  1861. 
witnesses  and  contempts — statutes  applicable  to  proceedings,  1865. 

Contests  of  elections.     See  Election  contests. 


2036  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238:  Vol.  II,  pages  1239-1369.' 

Contracts  generally. 

agreement  to  furnish  laborers,  1262. 
basis  of  contract  liability,  1261. 
contract — when  partially  void,  315. 

when  wholly  void,  315. 
consideration — how  ascertained  generally,  317. 

must  be  lawful,  316. 

effect  of  illegality  of,  316. 

effect  of  impossibility  of  ascertaining,  317. 

executory  consideration,  how  ascertained,  316. 

good  consideration  for,  promise,  315. 

legal  or  moral  obligation  as,  315. 

provision  as  to — when  void,  317. 
defense  to  actions  founded  upon  contract,  328. 

agreement  to  pursue  independent  measures  of  redress,  1263. 

non-delivery  of  contract,  1263. 
entire  and  severable  contracts— distinctions,  1262. 
executed  and  executory  contracts,  325. 
express  contract  denned,  317. 

Instalment  contracts,  actions  upon— when  judgment  is  a  bar,  1263. 
option  agreement — what  complaint  must  set  forth,  1262. 
test  of  divisibility  of  contracts,  1263. 

Contracts,  breach  of.     See  Breach  of  contracts  of  sale  and  purchase,  and  of 

miscellaneous  contracts. 
Contracts  of  builders.     See  Builders'  contracts. 
Contracts,  cancelation  of.    See  Cancelation  of  instruments. 
Contracts,  reformation  of.     See  Revision  or  reformation  of  contracts. 
Contracts,  rescission  of.     See  Rescission. 

Contribution  between  joint  debtors. 

action  for  contribution  of  proportion  of  expenses  for  constructing  water- 
conduits,  etc.,  1078. 

action  by  surety  to  determine  adverse  claims,  845. 

complaint  for  contribution  (form),  848. 

contribution  between  co-defendants,  849. 

contribution  between  joint  parties,  846. 

joinder  of  parties,  849. 

joint  wrong-doers,  849. 

judgment  to  enforce  contribution  or  repayment,  847. 

payment  of  street  assessment  by  owner  of  part  of  land — contribution  as 
against  remaining  owners,  849. 

procedure  upon  judgment  on  joint  obligation,  843. 

Contributory    negligence,    defense    of.     See    Negligence    (contributory)    as   a 
defense;   Negligence — miscellaneous  actions. 


INDEX.  2037 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 
Controversy  without  action.     See  Agreed  case. 

Conversion  and  trover. 

actions  by  representatives  for  conversion,  1010. 
allegation  of  fact  of  conversion,  1603. 
averment  of  ownership,  1603. 
complaint — when  deemed  sufficient,  1603. 

against  attorney,  for  conversion  of  money  collected  (form),  1599. 

against  warehouseman,  for  conversion  and  damages  (form),  1599. 

by  assignee  of  claim,  for  conversion  and  damages  (form).  1596. 

by  seller  against  fraudulent  buyer  of  goods  (form),  1596. 

for  conversion  (form),  1595. 

for  conversion  of  a  bond  (form),  1598. 

for  malicious   conversion,   and   damages   resulting   therefrom    (form), 
1601. 

in  action  for  goods  in  defendant's  possession  (form),  1596. 

in  action  for  goods  taken  from  possession  of  bailee  (form),  1597. 

for  unlawful  sale  of  note's  collaterals,  1604. 
conversion  for  refusal  to  enter  transfer  of  stock,  600,  601. 
conversion  by  carrier — stoppage  in  transitu,  1604. 
damages  for  conversion,  1605,  1733. 

measure  of,  in  trover,  1605. 
demand — when  not  necessary  in  bringing  trover,  1603. 
defense  by  sheriff  in  action  for  conversion,  682. 
denial — of  conversion  (form),  1602. 

of  ownership  (form),  1602. 

of  taking  (form),  1602. 
elements  of  an  action  for  conversion,  1603. 
fraudulent  conversion,  1604. 

judgment  [or  decree]  in  action  against  executor  for  conversion,  1028. 
remedies  of  party  defrauded,  1604. 
rule  as  to  property  severed  from  the  soil,  1604. 
rule  as  to  pleading  fraud — when  not  applicable  in  conversion,  1604. 
trover  at  common  law,  1604. 
trover — when  maintainable  against  a  sheriff,  682. 

when  true  owner  may  maintain,  1604. 

Conviction  of  felony.     See  Divorce  (causes  for). 

Copartners.     See  Partnership  and  accounting;  Partners  as  parties. 

Copies.     See  Exhibits. 

Corporations,  actions  relating  to  management  and  internal  affairs.     See,  also, 
Dissolution  of  corporations, 
actions  relating  to  the  management  and  internal  affairs  of  corporations 
generally,  556. 
to  collect  stock  subscriptions,  602. 
Jury's  PL— 129. 


2038  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.1 

Corporations,  actions  relating  to  management,  etc.  (continued), 
action — for  recovery  of  stock,  and  limitation  thereof,  565. 
against  directors  for  malfeasance,  557. 
to  set  aside  election  of  directors,  601. 
to  recover  assessment,  567. 

to  adjudge  assessments  void — relief  granted,  601. 
to  recover  amount  of  assessment  and  defenses  thereto,  601. 
assessment — notice  of  (form),  595. 

building  association  loans — prohibitions — penalties,  575. 
complaint — alleging  conversion  on  refusal  to  transfer  stock,  601. 

by  corporation  and  president  thereof  for  an  accounting  and  for  relief 
for  violation  of  trust,  and  for  sale  of  pledged  stock  delivered  to- 
secure  any  amounts  found  due  upon  such  accounting  (form),  582. 
by  minority  stockholders,  prosecuted  for  the  use  and  benefit  of  the 
corporation,  and  for  the  collection  of  sums  alleged  to  be  due  the 
corporation  (form),  587. 
for  alleged  conspiracy  of  directors  to  defraud  (form),  595. 
for  conversion  of  stocks  and  bonds,  pledged  by  the  plaintiff  to  secure 
debts,  and  to  annul  unauthorized  and  void  acts  of  the  pledgees 
acting  as   directors   of  the   corporation   and   as  trustees  of  such 
stocks  and  bonds  (form),  589. 
conversion  for  sale  under  void  assessments,  601. 
counterclaim  by  an  assignee  of  the  directors,  601. 

decree  in  action  by  stockholders  of  a  foreign  corporation  to  enjoin  certain 
acts  of  stockholders  alleged  to  be  in  furtherance  of  a  conspiracy 
to  deprive  the  plaintiffs  of  their  rights  as  holders  of  a  majority  of 
the  capital  stock  of  the  corporation  (form),  598. 
defense — defendant  corporation's  approval  and  ratification  of  acts  (form),. 
595. 
failure  to  exhaust  proper  measures  for  relief  (form),  595. 
plaintiff  not  a  party  in  interest  (form),  595. 
specific  denial  (form),  595. 
equitable  action  to  compel  entry  of  transfer  of  stock — parties,  600. 
interests  insurable  and  reinsurance,  568. 
liability  of  directors— rights  of  stockholders,  557. 

for  loss  of  insurance,  568. 
liability  of  officers  for  false  entries,  reports,  etc.,  563. 
liability  of  president  and  directors  in  reference  to  reports,  etc..  575. 
mandamus  to  enforce  right  to  inspect  books,  etc.,  of  a  corporation,  602. 
president  and  secretary  of  corporation  not  necessary  parties  defendant  to> 

action  to  transfer  stock,  600. 
proofs  of  publication  and  sale,  566. 
refusal  to  disclose  affairs  of  corporation,  601 
right  of  minority  stockholders,  599. 
right  of  stockholder  to  inspect  mine — damages,  when  recoverable.  574. 


INDEX.  2039 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Corporations,  actions  relating  to  management,  etc.  (continued). 

right  of  stockholder  acquiring  stock  after  commission  of  wrongs,  599. 
rule  in  federal  courts,  600. 
rule  in  the  state  courts,  600. 
sale  of  delinquent  stock — notice  of  (form),  595. 
special  meeting  of  directors — notice  of  (form),  594. 
supplemental  complaint  (form),  593. 

transferrer  of  stock  not  necessary  party  defendant  to  action  to  transfer 
stock,  600. 

Corporations  as  parties.     See,  also,  Municipal  corporations, 
corporations  as  parties  generally,  227. 
averments — as  to  corporation  plaintiff   (form),  227. 
as  to  corporation  defendant  (form),  228. 

as  to  national  banks  as  corporations  plaintiff  and  defendant   (form), 
228. 
corporation  having  contractual  interest  proper  party,  231. 
denial    based   upon   insufficient   knowledge   of   incorporation   of   plaintiff 

company   (form),  229. 
when  necessary  party,  231. 

Corporations,    foreign.      See    Foreign    corporations    and    their    stockholders, 
actions  against. 

Corporations,  voluntary  dissolution  of.     See  Dissolution  of  corporations. 

Costs. 

acknowledgment  of  service  of  a  copy  of  memorandum  of  costs   (form), 

1888. 
costs — in  divorce,  1899. 

in  equity  cases  generally,  1899. 

in  foreclosure,  1899. 

in  action  for  trespass,  1899. 

under  attachment,  1900. 

where  action  abates,  1900. 

where  partial  relief  is  granted,  1899. 
counsel  fees  as  costs,  1900. 
counterclaim  as  affecting  costs,  1900. 
effect  of  modification  or  reversal,  1900. 
filing  after  statutory  time,  1900. 
memorandum  of  costs  and  disbursements  on  part  of  plaintiff  or  defendant 

(form),  1887. 
notice  requiring  security  for  costs  (form),  1886. 
notice  of  motion  to  stay  proceedings  until  security  for  costs  be  given 

(form),  1887. 
premature  filing  of  cost-bill,  1900. 
satisfaction  of  judgment  for  costs  (form),  1879. 
sheriff's  return  of  execution  unsatisfied  (form),  1890. 
statutory  costs,  1900. 


2040  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Costs  (continued). 

statutory  limitation  of  right,  1899. 

what  statute  governs  as  to  costs,  1899. 
unliquidated  demands,  1900. 

verification  of  memorandum  of  costs  (form),  1887. 
writ  of  execution  for  fees  and  costs  (form),  1891. 

Counterclaim  [or  set-off]. 

counterclaim  or  set-off  (form),  89. 
counterclaim — generally,  81. 

as  affecting  costs,  1900. 

by  assignee  of  directors  of  a  corporation,  601. 

demurrer  to — Iowa  practice,  90. 

in  excess  of  plaintiff's  demand,  91. 

filing  of,  with  answer,  90. 

judgment  upon,  88. 

judgment  upon,  in  excess  of  plaintiff's  demand,  88. 

jurisdictional  amount  as  affecting,  91. 

misjoinder  of  causes  of — or  causes  not  separately  stated  (form),  25 

omission  to  set  up — effect  of,  84. 

objection  to — when  proper  to  be  raised,  90. 

reply  to,  by  general  denial,  28. 

waiver  of,  objection  to,  90. 

when  may  be  set  up,  81. 

when  benefit  is  not  affected  by  death  or  assignment,  85. 
facts  insufficient  to  constitute  a  defense  or  counterclaim  (form),  26. 
former  judgment  as  defense  and  counterclaim  in  divorce,  499. 
joinder  of  defenses  or  counterclaims — joint  demurrer  and  answer,  86. 
plea  in  bar  as  set-off  to  action  by  administrator  upon  contract  of  purchase 

and  sale,  1032. 
reply  to  set-off  or  counterclaim,  91. 

issues  of  waiver  and  estoppel  raised  upon  reply  to  counterclaim,  91. 
set-off  and  counterclaim — in  assumpsit,  90. 

statutory  distinction  between,  90. 

in  ejectment,  1135. 

for  negligence  (form),  1478. 

In  action  upon  promissory  note  (form),  1394. 
set-off — requisites  of,  90. 

common-law  remedy  of,  1294. 

right  of,  statutory,  89. 

rule  under  Texas  procedure,  89. 

against  contract  to  which  plaintiff  is  not  a  party,  90. 

against  a  nominal  party  in  partnership  and  accounting,  1324. 

held  not  to  include  unliquidated  damages,  89. 

of  value  of  improvements  made  on  property  held  adversely,  765. 


INDEX.  2041 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  IT,  pages  1239-1969.] 

Counties  and  county  officers,  actions  by  and  against.    See  Municipal  corpora- 
tions; Public  officers. 

Counts  in  pleading.     See,  also,  Debt,  actions  for. 

cause  of  action  against  a  city  stated  in  quantum  meruit,  661. 
common  count  is  good  pleading  under  the  code,  33. 
general  rule  as  to  findings  on  separate  counts,  1883. 
stating  cause  of  action,  32. 

Courtesy  [curtesy].     See  Property  of  husband  and  wife,  actions  relating  to. 
Courts. — See  Jurisdiction. 

Covenants,  title  and  possession  of  real  property, 
actions  relating  to,  generally,  1075. 

by  owner  or  occupant  of  dominant  tenement,  1075. 
by  owner  of  servient  tenement,  1076. 
for  injuries  to  the  inheritance,  1076. 

to  reclaim  bank  of  stream  severed  from  owner's  lands,  1079. 
to  recover  possession  of  land  and  mesne  profits  (form),  1084. 
allegation  of  ownership  of  land,  1089. 
apportionment  of  covenants  running  with  the  land,  1079. 
complaint — for  breach  of   covenant  against   encumbrance    of    judgment 
(form),  1083. 
for  breach  of  covenant  against  encumbrances  of  mortgage  (form),  1081. 
for  breach  of  covenant  for  quiet  enjoyment  (form),  1081. 
for  breach  of  covenant  of  seizin  (form),  1080. 
for  breach  of  covenant  of  warranty— deficiency    in    quantity   (form) 

1080. 
for  breach  of  covenant  of  warranty— failure  of  title  (form),  1081. 
in  action  to  recover  taxes  agreed  to  be  paid  by  lessee  (form),  1116. 
damages— detriment  caused  by  wrongful  occupation  of  real  property,  1731. 
measure  of,  for  breach  of  covenant  of  seizin— action  for  breach    of 
covenant  against  encumbrances,  1089. 
defenses— (1)  denials,  (2)   bar  of  statute  of  limitations,  (3)  adverse  pos- 
session,  (4)   former  adjudication— action  for  restoration  of  lands 
and  for  value  of  rents  and  profits  (form),  1085. 
eviction  not  essential  in  action  for  breach  of  covenant  of  seizin,  1089. 
extinguishment  by  disuse  of  right  of  way,  1089. 

judgment  for  plaintiff  and  intervener— action  to  have  it  adjudged  that  a 
deficiency  judgment,  docketed  against  plaintiff's  land,  is  not  a  lien 
thereon,  and  for  an  injunction  restraining  defendants  from  selling 
said  land  upon  an  execution  (form),  1088. 
owners  of  ditches,  flumes,  etc. — liability  to  each  other,  1077. 
plea  of  estoppel,  1084. 

pleading  assumption   of  indebtedness  as   real   consideration   for   convey- 
ance, 1089. 


2042  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Covenants,  title  and  possession  of  real  property  (continued), 
pleading  execution  and  delivery  of  deed,   1089. 
prayer   in   action   for   restoration   of  lands   and   for  value   of   rents   and 

profits,  1087. 
removing  subjacent  support — notice,  1090. 
right  to  lateral  and  subjacent  support,  1077. 

Creditors'  suits.    See  Fraudulent  transfers  and  assignments. 

Cross-complaint. 

cross-complaint  [or  cross-petition]   generally,  91. 
affirmative  matter,  when  not  subject  to  cross-complaint,  95. 
answer  and  cross-complaint  against  plaintiff  (form),  93. 
cross-bill  not  included  in  Montana  practice,  95. 
cross-complaint — between  defendants  (form),  94. 

in  action  to  quiet  title,  793. 

in  ejectment   (form),   1123. 

in  foreclosure  (form),  711. 

upon  pre-nuptial  contract,  520. 

against  third  party  not  named  in  the  action  (form),  94. 

procedure  when  filing,  91. 
cross-petition  in  action  at  law  tendering  equitable  issues,  95. 
demurrer  to  answer  and  cross-complaint — specifying  bar  of  the  statute 

(form),  26. 
denial  of  matters  in  cross-complaint — when  not  necessary,  95. 

Cruelty.     See  Divorce  (causes  for). 

Curtesy.     See  Property  of  husband  and  wife,  actions  relating  to. 

Damages.     See,  also,  Damages  for  wrongs. 

acceptance  of  principal  waives  claim  to  interest,  1721. 

amendment  as  to  damages — general  rule,  108. 

averment  as  to  irreparable  injury  caused  (form),  1202. 

averment  of  loss  of  time,  1742. 

averments  as  to  damages  for  breach  of  contract  to  purchase  oil  (form), 

1258. 
compensatory  relief — nature  and  extent  of,  1716. 
damages — generally,  1716. 

allowance  of  interest  as,  1743. 

contracts  fixing,  generally  void — exception,  308. 

for  breach  of  agreement  to  buy  real  estate,  1727. 

for  breach  of  agreement  to  convey  real  estate,  1727. 

for  breach  of  agreement  to  deliver  personal  property  not  paid  for,  1728. 

for  breach  of  agreement  to  deliver  personal  property  paid  for,  1728. 

for  breach  of  agreement  to  accept  and  pay  for  personal  property  sold, 
1728. 

for  breach  of  buyer's  agreement  in  conditional  sale,  1729. 


INDEX.  2043 

[References  are  to  pages.    Vol.  I,  pageB  1-1238;  Vol.  II,  pages  1239-1969.] 

Damages  (continued). 

damages — for  breach  of  carriers'  obligations,  1724. 

for  breach  of  carrier's  obligation  to  accept  freight,  passengers,  etc., 
1724. 

for  breach  of  carrier's  obligation  to  deliver  freight,  1724. 

for  breach  of  contracts,  generally,  1722. 

for  breach  of  contract  to  buy,  1743. 

for  breach  of  contracts  relating  to  real  property,  1725. 

for  breach  of  contracts  relating  to  personal  property,  1728. 

for  breach  of  promise  of  marriage,  1723. 

for  breach  of  warranty  of  agent's  authority,  1723. 

for  breach  of  warranty  of  quality  of  personal  property,  1730. 

for  breach  of  warranty  of  quality  for  special  purpose,  1730. 

for  breach  of  warranty  of  title  to  personal  property,  1729. 

demand  for  not  necessary,  1743. 

interest  in  actions  not  arising  from  breach  of  contract,  1719. 

interest  recoverable  with,  1719. 

measure  of,  for  breach  of  contract,  1722. 

must  be  ascertainable,  1722. 

must  be  reasonable,  1718. 

rate  stipulated  by  contract — when  superseded,  1719. 
detriment — defined,  1717. 

caused  by  breach  of  covenant  against  encumbrances,  1726. 

caused  by  breach  of  covenant  of  seizin,  etc.,  1725. 

caused  by  carrier's  delay  in  delivery,  1725. 

for  breach  of  obligation  to  pay  money,  1723. 

person  suffering,  may  recover  damages,  1716. 

resulting,  or  certain,  after  suit  brought,  1717. 
duel — damages  for  detriment  caused  by,  1741. 
duel — liability  to  pay  debts  of  person  slain  or  permanently  disabled  in, 

1742. 
exemplary  damages — allegation  as  basis  for  exemplary  damages,  1743. 
future  earnings  as  element  of  damages,  1742. 
liquidated  damages,  1743. 
limitation  of  damages,  1717. 
nominal  damages,  1718. 

personal  injuries  caused  by  known  defect,  1743. 
pleading  damages,  1743. 
profits  as  general  damages,  1248. 
"proximate  cause"  defined,  1742. 
punitive  damages,  1743. 
special  damages,  1742. 
speculative  damages,  1743. 
value,  how  estimated  in  favor  of  seller,  1717. 
"wilful" — meaning  construed,  1743. 


2()44  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  U,  pages  1239-1909.) 

Damages  for  wrongs. 

damages  for  wrongs — generally,  1730. 

for  assault,  368. 

for  breach  of  obligation  not  arising  from  contract,  1730. 

for  conversion,  to  party  having  lien,  1733. 

for  firing  woods,  1740. 

for  seduction,  1734. 

for  wilfully  holding  over  and  for  failure  to  quit   after  demand  and 
notice,  1738,  1739. 

for  wilful  or  negligent  injuries  to  animals,  1738. 
damages  (additional)  arising  out  of  a  tort,  108. 
detriment  caused  by  conversion  of  personal  property,  1733. 
detriment  caused  by  wrongful  occupation  of  real  property,  1731. 
exemplary  or  punitive  damages,  1737. 
injuries  caused  by  dogs,  etc.,  to  other  animals,  1734. 
measure  of  damages— for  injuries  to  trees,  etc.,  1740. 

for  wilfully  holding  over,  1732. 
penal  damages,  1737. 
presumption  as  to  wrongful  conversion,  1733. 

Death  by  wrongful  act.     See,  also,  Transitory  actions. 

actions,  generally — for  benefit  of  widow  and  children,  202. 

for  death  of  one  not  a  minor,  caused  by  wrongful  act  of  another,  194. 
by  husband  as  heir  of  wife,  203. 
by  personal  representative — Oklahoma  statute,  202. 
under  Arizona  statute,  1503. 

existence  of  beneficiaries  designated  by  the  statute  must  be  alleged, 
1503. 
alternative  methods  of  prosecuting  action,  203. 
code  rule — origin  of,  201. 

complaint — against  common  carrier  by  representative  of  decedent,  for 
damages  for  wrongful  death — decedent  a  passenger  on  defend- 
ant's train  (form),  1494. 
by  heir  at  law  against  street  railway  corporation,  for  damages  result- 
ing from  the  death  of  a  minor  child  caused  by  negligent  opera- 
tion of  street-cars  (form),  1496. 
by   husband   and   minor   children,   to   recover  damages   for   death   of 

wife  and  mother  of  said  minors  (form),  1498. 
by  representative,  for  wrongful  death  caused  by  collision  (form),  1495. 
must  show  that  there  are  heirs,  202. 
provisions  of  the  North  Dakota  statutes,  201. 
damages— statutory  limitation  upon,  1505. 
defenses — contributory  negligence  of  parent,  1505. 

assumption  of  risk  and  contributory  negligence  of  deceased,  1506. 
existence  of  beneficiaries— when  not  required  to  allege,  1503. 
judgment  for  plaintiff  upon  verdict  (form),  1501. 


INDEX.  2045 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Death  by  wrongful  act  (continued). 

measure  of  compensation  to  minors  for  death  of  parent,  1505. 
parties  to  action — common-law  rule,  201. 

special  administrator  as  "personal  representative,"  202. 

when  all  heirs  are  necessary  parties,  1503. 
passenger  in  automobile — death  resulting  from  negligence,  1505. 
replication  in  action  by  administrator,  for  wrongful  death  of  passenger 

on  overloaded  street-car  (form),  1500. 
statutory  requirements  must  appear  in  the  petition,  1502. 
substitution  of  representative  for  heirs  as  parties,  1503. 
time  in  which  suit  must  be  brought,  1502. 
unskilful  treatment  of  patient,  1505. 

Debt,  actions  for.    See,  also,  Sale  and  purchase;  Fraud  and  deceit  (defenses), 
assumpsit — pleading  at  common  law,  1287. 

sufficiency  of  pleading  under  the  code,  1287. 
lies  after  part  performance,  1287. 
partner  may  maintain  against  copartner,  1287. 
complaint  action  for  debt — common  count  (form),  1277. 

against  husband  and  wife,   for  goods   sold   to  wife   for  her  separate 

estate  (form),  1281. 
for  reasonable  value  of  goods  sold  (form),  1279. 
to  recover  for  goods  delivered  to  third  person  at  defendant's  request 

(form),  1279. 
to  recover  where  credit  was  given  (form),  1279. 

for  balance  on  goods  sold  and  delivered  at  an  agreed  price  (form),  1280. 
for  goods  sold  and  delivered  by  a  corporation  to  a  partnership,  and 

to  a  partner  as  an  individual  (form),  1283. 
defense — former  judgment  (form),  1285. 
general  denial  (form),  1285. 

as  to  agreement  to  take  note  in  part  payment  (form),  1285. 
reducing  value,  or  amount  promised,  and  pleading  payment,  or  offer 

to  pay   (form),  1284. 
that  credit  is  unexpired  (form),  1284. 
denial  of  indebtedness  (form),  1286. 
denial  of  plaintiff's  title  (form),  1284. 
non-delivery  under  general  denial,  1288. 

Deceit.    See  Fraud  and  deceit. 

Decrees.     See  Judgments. 

Deed  as  a  mortgage.    See  Foreclosure  of  mortgages  on  real  property. 

Defamation.     See  Libel;  Slander. 

Defaults. 

application  for  entry  of  default  (form),  1824. 

clerk's  entry  of  default  of  defendant  for  failure  to  appear  (form),  1824. 


2046  INDEX. 

[References  are  to  pages.    Vol.  I.  pages  1-123S;  Vol.  II,  pages  1239-1969.] 

Defaults    (continued). 

effect  of  entry  of  default,  1827. 

issues  of  law  preclude  default,  1827. 

judgment  of  default — entry  by  clerk — (form),  1877. 

order  on  stipulation,  setting  aside  default  judgment  (form),  1825. 

stipulation  to  set  aside  judgment  by  default  and  to  reopen  cause  (form), 

1824. 
remedies  against  default  judgment,  130. 

Defect  of  parties.    See  Joinder,  misjoinder,  and  non-joinder  of  parties. 

Defendants.     See,   also,   Parties   in   interest;    Joinder,    misjoinder,    and   non- 
joinder; Definiteness  and  certainty. 
action  upon  joint  and  several  contract,  245. 
objection  to  joinder  of  necessary  party — when  waived,  245. 
parties  defendant — general  rule  as  to  joinder  of,  244. 
persons  not  necessary  parties,  244. 
rule  as  to  multifariousness,  244. 
special  Wisconsin  statute  construed,  245. 

Defenses,  generally.     See,  also,  Accord  and  satisfaction;  Adverse  possession 
as  defense;    Duress;    Estoppel;    Former  judgment;    Laches;    Pen 
dency  of  action,  defense  of;   etc. 
affirmative  defenses  generally — Missouri  statute,  329. 
alternative  defenses,  68. 

consistency  of  actions  and  defenses — inconsistent  pleas  under  Texas  prac- 
tice, 145. 
defenses  in  general,  1432. 

to  instruments  assigned,  182. 

absence  of  free  consent  through  duress,  menace,  fraud,  undue  influence, 

or  mistake,  298. 
alteration  or  cancelation  of  contract,  312. 
no  jurisdiction  of  the  person — foreign  consul  (form),  57. 
based  upon  rescission  of  contract,  310. 
to  contracts  void  or  invalid — statute  of  frauds,  315. 
unconstitutionality  of  statute  upon  which  right  of  action  is  based,  69. 
to  actions  founded  upon  contract,  278. 
defense  founded  on  written  instrument,  157. 

federal  rule  as  to  stockholder  setting  up  defense  of  ultra  vires,  274. 
defenses  in  particular  cases — coverture  where  plaintiff  sues  alone  (form), 
189. 
averring  destruction  of  building  before  completion,  1095. 
in  action  for  specific  performance  of  contract  to  convey  land   (form), 

1767. 
fraudulent    representations — inadequate    and    unfair    consideration    in 
specific  performance,  1767. 


INDEX.  2047 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Defenses,  generally  (continued). 

defenses  in  particular  cases — ownership  of  waters  through  grants  of  lands 
embracing  all  subterranean  waters  within  the  limits  of  a  defined 
artesian  basin — action  to  enjoin  alleged  diversions  of  water  from 
an  artesian  basin  (form),  1208. 
prescriptive  right  to  use  of  waters  (form),  1212. 
riparian  right  to  waters  (form),  1213. 
voluntary  abandonment  of  office,  in  action  for  reinstatement  as  a  police 

officer  (form),  666. 
to  suppress  common  nuisances  and  immoral  practices,  747. 
in  actions  of  specific  performance  relating  to  sale  of  mining  property 

(form),  1769. 
in  actions  relating  to  trusts  and  trustees,  1152. 
equitable  defenses  in  ejectment,  1135. 
fraud  as  a  defense  must  be  set  up,  1583. 
inconsistent  defenses — Iowa  practice,  145. 
objection  to  inconsistent  defenses — how  raised,  128. 
laches  must  be  pleaded  as  a  defense,  1432. 

laws  of  a  foreign  state — defense  involving  issue  of  (form),  266. 
matter  of  defense,  when  deemed  denied,  36. 

misjoinder,  defense  of,  in  actions  relating  to  water-rights  (form),  1209. 
motion  to  elect  between  defenses  delayed  until  time  of  trial,  146. 
plea  of  the  statue  in  support  of  an  equitable  defense,  275. 
pleading  statute  of  limitations  as  defense  (form),  57. 
ultra  vires  of  corporation  (form),  266. 

estoppel  of  corporation  to  make  defense  of,  274. 

Definiteness  and  certainty. 

cause  stated  as  basis  of  recovery — general  rule,  128. 

demurrer  when  treated  as  motion,  144. 

remedy  to  obtain  definiteness  and  certainty,  144. 

uncertainty  and  indefiniteness  reached  only  by  motion,  128. 

test  of  consistency  of  defenses,  127. 

relation  of  inconsistent  defenses  to  motion  for  judgment  on  the  plead- 
ings, 1885. 

theory  of  action  or  defense — complaint  should  proceed  upon  definite  and 
distinct  theory,  127. 

uncertainty,  construed  to  support  judgment,  175. 

vague  and  indefinite  pleading,  145. 

Delivery  bond.     See  Bonds  and  undertakings. 

Demand. 

suit  as  demand,  32. 

objection  to  manner  of  pleading,  32. 

where  demand  is  unnecessary,  32. 


2U48  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  n,  pages  1239-1969.J 

Demurrer  to  the  answer. 

demurrer  to  the  answer  generally,  21,  36. 

general  and  special  demurrer  to  answer  (form),  26. 

grounds  of  demurrer  to  the  answer,  24. 

waiver  of  demurrer  to  answer  by  replying  over,  36. 

Demurrer  to  complaint.     See,  also,  Statute  of  limitations. 
ambiguity  and  uncertainty,  66. 
ambiguity — ground  of  (form),  43. 
challenging  sufficiency  by  oral  objections,  65. 

demurrer  and  motion  not  interchangeable,  61. 
demurrer — in  general,  21,  61. 

another  action  pending — Iowa,  Kansas,  Missouri,  Washington,  Wis- 
consin, Wyoming  (form),  42. 

causes  not  separately  stated  (form),  43. 

court  has  no  jurisdiction  of  the  person  (form),  41. 

court  has  no  jurisdiction  of  subject  of  the  action  (form),  42. 

defect  of  parties  (form),  42. 

facts  insufficient  to  constitute  cause  of  action  (form),  43. 

incapacity  of  plaintiff  to  sue  (form),  42. 

misjoinder  of  causes  (form),  43. 

misjoinder  of  parties  (form),  42. 

plaintiff  not  a  necessary  party  (Missouri)   (form),  47. 

upon  the  grounds — first,  want  of  plaintiff's  legal  capacity  to  sue;  sec- 
ond, that  the  petition  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action;  third,  misjoinder  of  alleged  causes  of  action 
(form),  45. 

to  petition — Iowa  code  (form),  46. 

not  interposed — subsequent  averments  and  variance,  130. 

Washington  statute  construed,  130. 

California  practice,  130. 
distinction   between   demurrer   and   motion   for   judgment   on   the   plead- 
ings, 61. 
effect  of  demurrer — admits  truth  of  facts  properly  pleaded,  63. 

denies  efficacy  in  law  as  justifying  relief  prayed  for,  63. 

only  necessary  averments  admitted,  63. 
failure  to  obtain  ruling  on  demurrer,  63. 
general  demurrer — for  insufficiency — Iowa  statute,  64. 

to  petition  in  equity — Iowa  code  (form),  46. 
grounds  of  demurrer  generally,  39. 
insufficiency,  question  on  demurrer  for,  64. 
intendments,  63. 

matters  considered  on  demurrer,  61. 
matters  of  form  disregarded,  64. 

notice  of  overruling  demurrer  and  order  granting  time  to  answer,  1831. 
misjoinder  of  causes,  66. 
objections  not  appearing  on  face  of  complaint,  47. 


INDEX.  2049 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Demurrer  to  complaint  (continued). 

objections  when  deemed  waived — exceptions,  48. 

order  sustaining  demurrer  without  leave  to  amend,  and  granting  motion 

for  judgment  on  the  pleadings  (form),  1878. 
provisions  of  the  Iowa  statute,  61. 
ruling  upon  demurrer,  effect  of,  67. 
"speaking  demurrer,"  62. 

special  demurrer  must  specify  particulars,  65,  66. 
specifying  grounds  of  demurrer,  43. 
stipulation  that  demurrer  be  overruled — effect  of,  65. 
sufficiency  of  motion  not  tested  by  demurrer,  61. 
sustaining  demurrer,  as  to  pendency  of  the  action,  67. 
test  upon  general  demurrer  interposed,   64. 
test  of  sufficiency  where  demurrer  is  not  interposed,  64. 
waiver  of  demurrer  by  answering  over,  62. 
waiver — effect  of,  62. 

Demurrer  to  reply.    See,  also,  Demurrer  to  complaint, 
demurrer  to  reply — in  general  (form),  59. 
for  insufficiency  (form),  59. 

Denials.     See  Answer. 

Deposit.     See  Deposit  in  court;  Bailment  or  deposit. 

Deposit  in  court, 
in  general,  1713. 

motion  to  deposit  money,  or  other  personal  property.  In  court  (form),  1714. 
order  for  deposit  in  court,  or  the  delivery  to  another  party,  of  money  or 
other  property  (form),  1715. 

Depositions. 

affidavit — for  taking  the  deposition  of  a  resident  witness  (form),  1841. 

upon  taking  deposition  of  defendant  as  witness  for  plaintiff   (form), 
1841. 

with  application  for  commission  for  the  taking  of  the  deposition  of 
a  non-resident  witness  (form),  1842. 
commission  to  take  deposition  of  witness  (form),  1843. 

certificate  of  commissioner  to  deposition,  1847. 

deposition  of  witness — annexed  to  the  commission  (form),  1846. 

instruction  to  commissioner  (form),  1843. 
notice  of  taking  of  deposition  (form),  1842. 
stipulation  of  counsel  to  take  depositions  (form),  1840. 

Desertion.     See  Divorce  (causes  for). 

Destroyed  corporation  records.    See  Lost  or  destroyed  corporation  records. 

Detainer.    See  Forcible  entry  and  unlawful  detainer. 


:.boo  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  IT,  pages  1239-1969.J 

Detention  of  personal  property.   See  Personal  property,  injuries  to  and  unlaw- 
ful detention  thereof. 

Dilatory  plea,  asserting  by  amendment,  107. 

Directors.      See   Corporations,    actions    relating   to   management   and   inter- 
nal affairs. 

Disbarment  of  attorneys. 

demurrer  or  objections  to  accusation  (form),  1957. 

judgment  of  disbarment  where  the  accusation  is  based  upon  a  conviction 

of  a  felony  (form),  1957. 
judgment  or  order  of  suspension  (form),  1958. 
order  addressed  to  accused  to  appear  and  answer  (form),  1956. 
petition  for  disbarment  (form),  1955. 
verification  of  petition  for  disbarment,  1956. 
verification  of  petition  for  disbarment — California  (form),  1956. 

Discharge.     See  Release  and  discharge,  defense  of. 

Discharge  in  attachment.     See  Attachment  and  garnishment. 

Discharge   in    bankruptcy,   as   defense.     See    Bankruptcy,    discharge    in,   as 
defense. 

Disclaimer. 

amended  answer  with  disclaimer  (form),  182. 
disclaimer  of  interest  (form),  182. 

in  action  for  cancelation  of  forged  deed  (form),  776. 

in  partition — not  required  to  be  accepted  unless  absolute,  822. 

in  action  to  quiet  title  (form),  769. 

Dismissal. 

affidavit  of  clerk  on  motion  to  dismiss  (form),  889. 
dismissal  of  action  by  plaintiff  (form),  1867. 

statutes  construed,  1870. 
dismissal  as  to  one  or  more  joint  debtors,  1870. 
judgment  of  dismissal — entry  by  clerk  (form),  1876. 

as  nonsuit,  1869. 

rule  under  Oregon  practice,  1870. 
jurisdiction — inherent  authority  of  courts  to  order  dismissal,  1869. 
notice  of  motion  to  dismiss  action,  1831. 
notice  of  motion  to  dismiss  action  unless  proper  parties  revive  the  same 

(form),  216. 
stipulation  of  dismissal  on  compromise  (form),  1867. 

Dissolution  of  corporations. 

dissolution  of  corporations,  generally,  953. 

application  for  voluntary  dissolution  of  corporation,  953. 


INDEX.  2051 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1960.] 

Dissolution  of  corporations  (continued), 
petition  for  dissolution  (form),  960. 
petition  for  voluntary  dissolution,  960. 
signing  and  verification  of  application,  959. 

Divorce. 

adultery — defined,  467. 

as  ground  for  divorce,  467. 

how  charge  of  is  stated,  498. 

allegation  of  adulterous  intercourse  (form),  469. 
allegation  that  application  for  divorce  is  made  in  good  faith — Iowa  statute 

construed,  497. 
bar  to  action  interposed  by  the  court,  499. 
causes  or  grounds  for  divorce,  453. 

change  of  venue  where  real  action  is  joined  with  action  for  divorce,  1820. 
complaint — ground  of  adultery  (form),  468. 

ground  of  adultery,  where  name  of  paramour  is  unknown  (form),  469. 

ground  of  failure  to  provide  (form),  469. 

ground  of  habitual  intemperance  or  drunkenness   (form),  479. 

ground  of  extreme  cruelty  (form),  478. 

ground  of  cruelty,  for  custody  of  minor  children,  division  of  property, 
alimony,  etc.  (form),  475. 

ground  of  conviction  of  felony  (form),  479. 

ground  of  wilful  neglect,  or  failure  to  provide  (form),  470. 

ground  of  desertion  (form),  474. 

on  grounds  of  desertion  and  failure  to  provide  (form),  473. 
conviction  of  felony  as  ground  for  divorce,  479. 
counsel  fees — when  court  may  award,  499. 
cruelty  as  ground  for  divorce,  474. 

extreme  cruelty  defined,  474. 

"grievous  bodily  injury,"  "grievous  mental  suffering,"  498. 

mental  suffering  as  element  of  cruelty,  498. 
decree — a  vinculo,  500. 

awarding  permanent  alimony,  500. 

of  nullity,  may  be  rendered,  when,  500. 

entry  of,  nunc  pro  tunc,  500. 

final  judgment  or  decree,  490. 

final  decree,  giving  plaintiff  authority  to  resume  her  former  name 
(form),  496. 

findings  and  decrees,  489. 

findings  of  fact  and  conclusions  of  law  (form),  492. 

interlocutory  judgment  or  decree,  489. 

interlocutory  decree  (form),  493. 

interlocutory  decree — effect  of,  499. 

interlocutory  decree,  providing  for  custody  of  minor  children,  division 
and  separation  of  community  and  separate  property,  etc. — action 
on  the  ground  of  cruelty  (form),  493. 


2052  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Divorce  (continued). 

decree — judgment  by  confession,  when  unauthorized,  500. 

modification  of  orders  and  decrees  under  the  Oklahoma  statutes,  499. 

modification  by  motion,  500. 
desertion — defined,  470. 

absence  or  separation,  when  becomes  desertion,  472. 

how  manifested,  471. 

how  cured,  472. 

in  cases  of  strategem  or  fraud,  471. 

in  cases  of  cruelty,  where  one  party  leaves  the  other,  471. 

*»v  husband  where  selection  of  home  or  mode  of  living  is  unfit,  473. 

complaint  for  desertion  not  required  to  allege  offer  of  reconciliation, 
498. 

"persistent  refusal"  under  complaint  for  desertion,  498. 

rights  of  husband,  as  head  of  family,  467. 

right  of  husband  to  choose  home  and  method  of  living,  473. 

separation  by  consent  not  desertion,  472. 

revocation  of  consent  to  separation,  472. 
defenses  and  causes  for  denial  of  divorce,  479. 

collusion  defined,  481. 

condonation  defined,  482. 

condonation,  when  to  bar  defense,  484. 

condonation  (form),  485. 

connivance  defined,  480. 

defenses  in  bar,  499. 

former  judgment  as  defense  and  counterclaim,  499. 

general  denial  (form),  484. 

grounds  for  denial  of  divorce,  479. 

divorce,  when  denied  because  of  lapse  of  time,  459. 

denial  of  adultery — and  cross-complaint  (form),  484. 

divorce  proceedings  in  general,  453. 

divorce  from  bed  and  board,  500. 

divorce  by  default  or  on  uncorroborated  testimony  not  granted,  464, 
habitual  intemperance  (or  drunkenness)  as  ground  for  divorce,  478. 

habitual  intemperance  defined,  478. 

how  charged,  498. 
impotency  as  ground  for  divorce  in  certain  jurisdictions,  479. 
interest  of  the  state  in  divorce  proceedings,  498. 
period  of  continuance  of  certain  causes,  463. 

plea  of  former  adjudication  (form),  485. 

recrimination  defined,  482. 

recriminatory  facts — pleading  of,  499. 
residence — plaintiff  required  to  establish,  461,  498. 
publication  of  summons  in  divorce  proceedings,  486. 

affidavit  of  search  for  defendant — California  (form),  487. 

affidavit  of  plaintiff  for  publication  of  summons  (form),  486. 


INDEX.  2053 

{References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Divorce  (continued). 

publication  of  summons,  order  for — California  (form),  488. 
right  to  defend — court  can  not  deprive  defendant  of,  499. 

stipulation  not  to  defend,  499. 
trial  of  issues  by  jury — Oklahoma  practice,  499. 
wilful  neglect  (or  failure  to  provide)  as  ground  for  divorce,  469. 
wilful  neglect  defined,  469. 

Dower.     See  Property  of  husband  and  wife,  actions  relating  to. 

Drafts.    See  Negotiable  instruments. 

Drainage.     See  Irrigation  and  reclamation. 

Drunkenness.     See  Divorce  (causes  for). 

Duel,  damages  caused  by.     See  Damages. 

Duress,  defense  of. 

duress — definition,  300. 

development  of  the  defense  of,  332. 
defense — duress  of  imprisonment  (form),  304. 

duress  against  public  service  corporation  (form),  305. 

of  menace  (form),  305. 

Ejection.     See   Negligence  of  carriers — actions   for  injuries   to  passengers. 

Ejectment. 

ejectment,  generally,  1119. 
affirmative  defense,  1134. 
complaint  in  ejectment  (form),  1119 

when  sufficient,  1134. 

by  a  city,  1134. 

for  use  and  occupation  (form),  1120. 

for  restitution  of  lands  and  for  damages  for  alleged  trespass  (form), 
1125. 

alleging  title  by  dower  (form),  1120. 

alleging  title  by  descent  (form),  1121. 

alleging  title  by  devise  (form),  1122. 

by  owner  of  undivided  interest  (form),  1122. 

by  tenant  (form),  1122. 

by  homestead  entryman  (form),  1123. 
conditional  judgment,  1136. 
cross-complaint  (form),  1123. 

must  relate  to  lands  in  question,  1135. 
damages — right  to  recover  rents  and  profits,  1135. 
defense — based  upon  agreement  to  convey  (form),  1125. 

adverse  possession  (form),  1127. 

adverse  possession  founded  upon  a  written  instrument  (form),  1127. 
Jury's  PI.— 130. 


2054  INDEX- 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Ejectment  (continued). 

defense —based  upon  bar  of  the  statute  (form),  1127. 

based  upon  fraud  of  original  owner  (form),  1127. 

based  upon  grant  of  franchise  and  right  of  way  (form),  1125. 

based  upon  unexecuted  agreement  to  convey  under  which  possession 
was  given  (form),  1127. 
effect  of  certain  denials  and  admissions  as  to  homesteader's  entry,  1134. 
ejectment  by  mortgagor,  1134. 

ejectment  to  recover  homestead — action  by  wife,  1134. 
equitable  defenses  in  ejectment,  1135. 

code  rule,  1135. 
essential  allegations,  1133. 

facts  must  show  entry  to  be  "wrongful  and  unlawful,"  1133. 
improvements  by  purchaser  not  set-off,  1135. 
intervention  in  ejectment,  1135. 

judgment  for  defendant  upon  an  equitable  defense  in  ejectment,  embody- 
ing general  findings  upon  the  issues  (form),  1132. 
title  in  defendant,  1134. 

rents  and  profits  included  in  judgment,  1135. 
value  of  use  and  occupancy,  1135. 
verdict  and  judgment — basis  of,  1135. 
when  ejectment  is  not  the  proper  remedy,  1134. 
writ  of  restitution  upon  judgment  in  ejectment,  1901. 

Election  between  causes.    See,  also,  Definiteness  and  certainty  in  pleading, 
doctrine  of  election — when  it  has  no  application,  146. 

election  between  remedies  upon  executed  contract  of  sale  and  purchase, 
146. 

Election  between  remedies  and  defenses.     See,  also,  Defenses, 
inconsistency  between  defenses,  generally,  145. 
motion  to  elect — not  applicable  to  different  consistent  counts,  146. 

when  too  late,  146. 
remedy  chosen — when  not  available,  146. 
waiver  of  motion  to  elect,  147. 

Election  contests. 

election  contests,  generally,  894. 

contest  under  Idaho  revised  codes,  904. 

parties  to,  and  grounds  of  contest,  894. 

pleading  reception  of  illegal  votes  as  cause  of  contest,  902. 

proceeding  for  election  contest  unknown  at  common  law,  and  Is  purely 

statutory,  904. 
statement  or  complaint  of  cause  of  contest,  898. 
statement  of  cause — want  of  form  will  not  vitiate,  903. 


INDEX.  2055 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Eminent  domain. 

eminent  domain,  generally,  961. 

acquisition  of  property  by  exercise  of  eminent  domain,  961. 

allegation  in  action  to  decree  road  a  public  highway,  974. 

answer  not  raising  issue  as  to  necessity,  974. 

complaint  in  exercise  of  the  right  of  eminent  domain — parties,  962. 

complaint  for  condemnation  of  land  for  a  public  use  (form),  972. 

demand  for  jury  to  ascertain  damages — Colorado  statute,  974. 

private  property  taken  for  private  use — Colorado  statute,  974. 

right  of  eminent  domain  under  the  Washington  constitution,  974. 

Employees.     See  Employers'  liability  cases  and  actions  against  employees; 
Work  and  services. 

Employers'  liability  cases  and  actions  against  employees. 

actions  generally  upon  employers'  liability,  and  by  and  against  employees, 

1448. 
burden  of  proof  as  to  assumed  risk,  1460. 
complaint  in  action  for  negligence  held  sufficient,  1459. 
complaint — by  employee  against  railroad  company,  for  damages  resulting 
from  injuries  sustained  in  operation  of  defective  machinery  (form), 
1449. 
by  servant,  to  recover  damages  for  personal  injuries  sustained  from 
negligence   of  employer  in   requiring  performance   of   labor   with 
which  the  servant  was  not  familiar  (form),  1450. 
under  employers'  liability  act  (form),  1451. 
by  employer,  for  servant's  negligence  (form),  1454. 
by  employer,  for  repayment  of  money  advanced  for  services   (form), 
1454. 
defense — assumption  of  risk,  1460. 

assumption   of   risk   and   contributory   negligence — separate   defenses, 

1460. 
failure  of  plaintiff  to  give  notice  prescribed  by  statute  as  condition 

precedent  to  action  (form),  1455. 
contributory  negligence  (form),  1457. 
contributory  negligence  and  assumed  risk  (form),  1456. 
negligence  of  fellow-servant  of  plaintiff  (form),  1457. 
denial,  contributory  negligence  and  assumed  risk  (form),  1456. 
instruction  based  upon  an  assumed  risk,  1460. 
insufficient  showing  of  negligence,  1459. 

liability  of  servant  to  master  for  acts  of  servant's  minor  children,  1460. 
negligence  of  fellow-servant,  1460. 
notice  as  condition  precedent — Kansas  statute,  1458. 
risk — when  deemed  assumed,  1460. 

Encumbrances,  breach  of  covenant  against.     See  Covenants,  title,  and  pos- 
session of  real  property. 


2056  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-19S9.J 

Enticing  away.    See  Abduction. 

Entry.     See  Forcible  entry  and  unlawful  detainer. 

Entry  of  judgment.     See,  also,  Judgments. 

entry  of  judgment  as  distinguished  from  the  judgment,  1883. 

irregular  entry  of  decree,  1883. 

Iowa  statutes  relating  to  entry  of  judgment,  1883. 

Equitable  defenses.    See  Defenses,  generally. 

Equity.     See  Relief  in  general;  and  titles  of  particular  equitable  actions,  so 
called. 

Errors  in  pleading.     See  Amendments;  Mistakes  in  pleading. 

Escheated  estates. 

escheated  estates,  in  general,  975. 

information  as  to  escheated  estate,  975. 

information  to  declare  an  escheat  to  the  state,  984. 

defense — answer  to  information  respecting  an  alleged  escheated  estate — 

judgment,  982. 
petition  to  declare  escheat   (form),  984. 

Estates,  escheat  of.     See  Escheated  estates. 

Estates  of  deceased  persons.     See  Executors  and  administrators,  actions  by 
and  against. 

Estates,  interest  in.     See  Heirship  and  interest  in  estates,  actions  to  deter- 
mine. 

Estoppel,  defense  of. 

defense  of  estoppel,  in  general,  269. 
defense  of  estoppel  (form),  248. 

in  relation  to  attachment  proceedings,  1700. 

in  replevin,  to  deny  taking,  1650. 

by  former  judgment,  271. 

against  defenses  in  the  answer — rule  where  no  reply  is  allowed,  270. 
equitable  estoppel  and  estoppel  in  pais,  270. 
estoppel  proceeds  on  the  ground  of  fraud,  270. 
evidence  of  facts  constituting  estoppel — when  not  admissible,  270. 
facts  showing  estoppel,  in  issue,  270. 
former  action  by  an  infant,  271. 
laches  as  estoppel,  276. 

modifications  of  the  rule  as  to  estoppel,  270. 
party  invoking  defense  must  act  in  good  faith,  270. 
statements,  etc.,  in  prior  pleadings,  270. 

Eviction.     See  Covenants,  title  and  possession  of  real  property. 


INDEX.  2057 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Exceptions.     See,  also,  Trials, 
exceptions,  generally,  1864. 

matters  of  record  properly  have  no  place  in  a  bill  of  exceptions,  1864. 
order  allowing  additional   time   in   which   to   prepare   and   serve   bill   of 

exceptions  on  granting  nonsuit  (form),  1867. 
notice  of  presentation  of  bill  of  exceptions  for  settlement  (form),  1905. 
repetition  of  exceptions  upon  the  trial,  1864. 

Exchange,  bills  of.     See  Negotiable  instruments. 

Executions.     See,  also,  Sheriff's  and  constables;  Writs, 
executions — generally,  1886. 

against  real  or  personal  property  in  the  hands  of  an  executor,  etc. 

(form),  1894. 
in  replevin  (form),  1637. 
sheriff's  return  of,  unsatisfied — property  claimed  by  third  person  (form), 

1890. 
upon  writ  of  restitution  (form),  1895. 
writ  of  execution — corporation  as  judgment  debtor  (form),  1889. 
after  remittitur  filed  (form),  1896. 

on  certified  abstract  of  judgment  of  justice's  court  (form),  1892. 
on  judgment  (form),  1888. 
writ  of  assistance  (form),  1897. 

Execution,  proceeding  supplementary  to. 

elements  of  petition  for  an  order  requiring  a  debtor  of  a  judgment  debtor 
to  appear  and  answer,  1898. 

Executors   and   administrators,   actions   by  and   against.     See,   also,   Probate 
contests, 
actions  by  and  against  executors  or  administrators — generally,  1029. 
for  services  against  administrator  of  deceased  executor,  1031. 
on  note  payable  to  bearer,  1030. 

to  obtain  compensation  for  attorney's  services,  1031. 
to  recover  on  accounts  collected  by  an  administratrix  for  the  benefit 

of  another — complaint  held  sufficient,  1031. 
upon  bond  of  executor  or  former  administrator  of  same  estate,  1011. 
actions  by  and  against  representatives— generally,  1008. 

against  estate  of  parent  for  support  of  a  minor  child,  532. 

for  waste,  trespass,  conversion,  etc.,  1010. 

for  waste,  trespass,  or  conversion,  committed  by  decedent,  1010. 

respecting  estates  of  missing  persons,  1018. 

to   recover   damages   for   neglect   or   misconduct   of   representatir*— 

recovery  upon  bond,  etc.,  1004. 
to  recover  penalty  as  liquidated  damages  for  fraudulent  sale  bj  repre- 
sentative, 1005. 
to  recover  property  fraudulently  disposed  of  by  decedent,  1012. 


2058  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Executors  and  administrators,  actions  by  and  against  (continued). 

action — upon  any  special  promise  of  representative  to  pay  debts  out  of 

his  own  estate,  1013. 
administrator   not   a   parcener   within    meaning   of   statutes    relating   to 

partition,  822. 
averments — as   to   decease,    appointment   of   special   administrators,   etc. 
(form),  1794. 
as  to  ownership  in  decedent  (form),  1794. 

as  to  possession  by  special  administrators,   and   their  succession   by 
executors  (form),  1795. 
citation   to   executor   and   surviving   widow   to   show   cause   why    family 

allowance  should  not  be  reduced  (form),  1808. 
claims — complaint  to  allege  presentation  of  claim,  1030. 

"claimant"  and  "affiant,"  1030. 
complaint — against  executor,  or  administrator,  on  cause  of  action  existing 
against  testator,  or  intestate  (form),  16. 
by  administrator  to  establish  trust,  and  for  cancelation  of  certificate 

of  stock  (form),  1025. 
by  administratrix  against  the  executor  and  devisee  of  another  estate, 
which  defendant  estate  is  alleged  to  have  been  acquired  by  fraud 
practised   against  the   decedent   of   the   plaintiff's   estate    (form), 
1023. 
by  executor,  or  administrator,  for  conversion  (form),  1598. 
by  executor,  or  administrator,  on  cause  of  action  existing  in  favor  of 

testator,  or  intestate  (form),  17. 
by  executor,  or  administrator,  suing  as  such  (form),  16. 
by  vendor  against  executor  of  purchaser  (form),  1021. 
for  embezzlement  or  concealment  of  property  belonging  to  estate  of 

decedent  (form),  1019. 
to  obtain  judgment  decreeing  an  estate  to  be  owner  of  certain  personal 
property  and  for  temporary  injunction,  1021. 
judgment  in   action   against   executors   for   conversion   by   testator,    and 

allowing  therefor  as  a  claim  against  the  estate,  1028. 
negligence  in  management  of  estate,  1032. 

orders — restraining  order  to  executor,  and  order  to  show  cause   (form;, 
1834. 
revoking  letters  testamentary  (form),  1835. 
suspending  power  of  executor,  1834. 
parties — wife  sued  as  executrix,  1030. 

executor,  administrator,  trustee  of  express  trust,  etc.,  185. 
executors  may  sue  for  a  conversion,  1030. 
joining  administrator  in  action  upon  joint  obligation,  1031. 
suits  by  representative  in  a  foreign  jurisdiction,  1030. 
petition  for  revocation  of  letters  of  administration — counter  petition,  1040. 
petition  for  substitution  by  executor  or  administrator  of  deceased  plaintiff 
(form),  215. 


INDEX.  2059 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969. J 

Executors  and  administrators,  actions  by  and  against  (continued), 
possession  of  representative  of  estate  for  purposes  of  action,  1006. 
quiet  title,  averment  of  possession  in  deceased,  effect  of,  1031. 
waiver  of  tort  by  executor — suit  on  contract,  1030. 

Ex  rel.  actions.     See  State,  actions  by  or  against,  etc. 

Exhibits. 

as  part  of  pleading,  35. 
reference  to  in  other  counts,  35. 
rule  as  to,  in  Arkansas,  36. 
under  the  Missouri  practice,  35. 

under   Missouri   practice   exhibit   not   part  of  pleading   for   purposes   of 
demurrer,  62. 

Extradition.     See  Habeas  corpus. 

Extreme  cruelty.     See  Divorce  (causes  for). 

Facts,  pleading  of.     See  Pleading  in  general. 

False  imprisonment. 

averment  of  malice,  etc.,  unnecessary,  349. 
complaint — common  form  (form),  338. 

in  action  in  which  special  damages  are  averred  (form),  338. 

in  action  to  recover  damages  for  false  imprisonment  of  wife  where 
husband  is  joined  (form),  339. 
defenses — actions  for  false  imprisonment,  340. 

denial  of  arrest  (form),  340. 

justification  of  arrest  upon  suspicion  of  felony  (form),  341. 

justification  of  arrest  by  officer  under  writ  (form),  341. 

want  of  probable  cause  and  denial  of  termination  in  favor  of  plaintiff 
(form),  340. 
judgment  (form),  348. 

rule  in  malicious  prosecution  not  applicable  to  false  imprisonment,  349. 
unlawfulness  of  arrest  is  defensive  matter,  349. 

Federal   court,   removal   of  cause  to.     See  Removal  of  cause  from  state  to 
federal  court. 

Fellow-servant,  negligence  of,  as  defense.     See  Negligence  of  fellow-servant, 
as  defense. 

Fictitious  parties. 

fictitious  parties  generally,  232,  235. 

averment  as  to  unknown  defendants  (form),  234. 

averment  as  to  fictitious  parties  (form),  1797. 

directing  amendment  by  inserting  true  name,  236. 

review  on  appeal,  236. 

substitution  of  true  name  should  precede  judgment.  235 


2060  INDEX- 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-19M.J 

Findings  of  fact  and  conclusions  of  law.     See,  also,  Judgment. 

additional  findings— action  to  quiet  title,  for  value  of  rents  and  profits, 

and  for  restitution  (form),  1872. 
finding  as  to  truth  of  allegations  generally,  1883. 
findings  as  to  averments  not  denied,  1882. 
findings  of  fact  (form),  1871. 
conclusions  of  law  (form),  1872,  1874. 
findings  of  fact  and  conclusions  of  law  (form),  1871. 
general  rule  as  to  findings  on  separate  counts,  1883. 
remedy  where  findings  are  imperfect — motion  in  arrest  of  judgment,  1883. 

Fire  insurance.     See  Insurance. 

Forcible  and  unlawful  entry  and  detainer. 

basis  of  action — defenses,  915. 

complaint — for  forcible  entry  (form),  917. 

for  forcible  or  unlawful  entry  or  detainer,  912. 

for  forcible  entry  and  forcible  detainer  (form),  918. 

for  unlawful  detainer  after  expiration  of  term  (form),  918. 
damages  for  failure  to  quit  after  notice,  1738. 
damages,  measure  of,  for  wilfully  holding  over,  1732. 
defense  based  upon  agreement  to  execute  new  lease — unlawful  detainer 

(form),  920. 
denial  of  forcible  entry,  damages,  etc.  (form),  919. 

Foreclosure  of  mechanics'  liens. 

amending  complaint  changing  to  action  on  contract,  952. 

attorney's  fees  not  included  in  lien,  953. 

averment  as  to  verification  of  claim,  952. 

complaint— default  of  payment  should  be  averred,  951. 

held  sufficient  after  answer,  952. 

against  owners  for  foreclosure  of  original  and  assigned  liens  of  me- 
chanics and  materialmen  (form),  942. 

by  materialman  upon  contract  with  owner  (form),  940. 

to  enjoin  claimants  from  asserting  or  claiming,  except  in  one  action, 
under  certain  alleged  mechanics'  liens  (form),  1662. 
defense  in  action  to  foreclose  lien  for  reclamation,  952. 
defense  asserting  superior  lien  of  mortgage  not  yet  due  (form),  946. 
filing  of  claim  averred,  951. 
judgment   for   owner   in   mechanics'    lien    causes,    and    for   materialmen 

against  contractor  (form),  947. 
judgment  for  materialmen  and  laborers  in  consolidated  causes  (form),  948. 
lien  upon  contract  price  deposited  in  court,  953. 
liens  upon  mining  claims,  953. 
persons  entitled  to  liens — contracts,  922. 

persons  supplying  power,  implements,  etc.,  entitled  to  lien,  936. 
specific  denials  (form),  945. 
time  of  continuance  of  lien,  937. 


INDEX.  2061 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Foreclosure  of  mortgages  on  real  property. 

foreclosure  of  mortgages  on  real  property  generally,  694. 

affirmative  defenses  in  action  to  foreclose,  729. 

affidavit  of  publication  (form),  725. 

affidavit  of  posting  notice  of  commissioner's  sale  (form),  725. 

allegation  of  insurance  by  plaintiff  (form),  706. 

amended  and  supplemental  complaint  by  substituted  plaintiff  (form).  712 

assignee  of  mortgagee  against  mortgagor — mortgagee  guaranteeing  and 

grantee  assuming  payment  (form),  707! 
averments  sufficient  to  entitle  to  decree,  730. 
bond  of  commissioner  appointed  to  sell  (form),  720. 
commissioner's  certificate  of  sale  on  foreclosure  (form),  721. 
commissioner's  account  of  sales  (form),  726. 
complaint  for  foreclosure  (form),  705. 

to   foreclose   liens   of   mortgage   against   a    religious   corporation    for 

breach  of  covenants,  etc.  (form),  708. 
by  guardian  ad  litem  in  foreclosure  and  to  set  aside  pretended  release 
(form),  426. 
contesting  validity  of  mortgage,  730. 

cross-petition  and  counterclaim  thereto  in  foreclosure,  729. 
cross-petition  setting  up  superior  and  paramount  lien  (form),  711. 
copy  of  mortgage  attached  as  exhibit,  729. 
debt  payable  in  instalments — proceedings,  702. 
decree  of  foreclosure  and  sale  (form),  717. 
deed  absolute  as  mortgage — when  so  regarded,  730. 
action  to  adjudge — complaint  held  sufficient,  730. 
defense  to  action  to  foreclose,  735. 

defense  of  non-joinder  of  assignee  of  mortgagor  (form),  717. 
denial  of  assignment  (form),  717. 
denial  of  recordation  of  mortgage  (form),  717. 
elements  of  a  complaint  on  a  promissory  note  or  other  instrument  secured 

by  mortgage,  705. 
intervention  by  wife  in  foreclosure  to  set  up  homestead  right,  729. 
joinder  of  actions — reformation  and  foreclosure,  729. 
judgment  against  insane  person  entered  in  foreclosure,  440. 
lost  or  destroyed  mortgage — general  denial,  730. 
mortgage  barred  when  debt  is  barred,  730. 
notice  of  object  of  action  (form),  728. 

oath  of  commissioner  appointed  to  sell  mortgaged  property  (form),  721. 
proceedings  to  foreclose  mortgage  upon  real  property,  695. 
recapitulation  of  commissioners'  account  in  foreclosure  (form),  727. 
receipt  of  moneys  realized  on  foreclosure  sale  (form),  726. 
summons  upon  cross-petition  in  foreclosure  not  necessary — Kansas  stat- 
ute, 728. 
verified  report  and  account  of  sale  (form),  722. 


2062  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.J 

Foreclosure  of  mortgages  on  real  property  (continued), 
wife,  when  necessary  party  in  action  to  foreclose,  246. 
writ  in  foreclosure,  1901. 
writ  of  execution  for  deficiency  (form),  1893. 

Foreign  corporations  and  their  stockholders,  actions  against, 
generally,  616. 

capacity  of  foreign  corporation  to  sue,  when  admitted,  271. 
complaint  against   foreign   corporation — on   an   account   stated   for   debt 

(form),  1281. 
to  rescind  a  contract  for  breach  of  warranty  of  quality,  and  to  recover 

part  of  purchase  price  paid  (form),  1244. 
based  upon  liability  of  stockholders  of  foreign  corporations   (form),  616, 

619. 
corporation  when  suing  not  required  to  allege  compliance,  271. 
defense  of  statutory  exemption  from  individual  liability  (form),  618. 
defense,  in  replevin,  that  foreign  corporation  plaintiff  had  not  filed  articles 

or  designated  resident  agent  (form),  1646. 
foreign  corporations  to  file  certified  copy  of  articles,  249. 
judgment,  or  decree,  in  action  by  foreign  corporation,  598. 
jurisdictional  comity  as  to  foreign  corporations,  272. 
liability  of  stockholders,  generally,  619. 
matters  not  considered  under  general  demurrer,  compliance  by  foreign 

corporation  with  state  laws,  65. 
penalty  for  failure  to  file  certified  copy  of  articles,  261. 
record  as  to  foreign  corporation — what  it  must  show,  272. 
statutes  relating  to  foreign  corporations,  271. 
statutes  as  to  non-compliance  construed,  271. 
venue  of  actions  against  foreign  corporations,  1821. 
waiver  by  defendant,  272. 

Foreign  judgment,  defense  of  invalidity  of.    See  Judgments,  actions  upon. 

Foreign   laws. 

death  by  wrongful  act,  action  for,  in  foreign  state,  1504. 

defense  that  contract  was  void  under  the  laws  of  a  foreign  state  where 

executed  (form),  309. 
defense  based  upon  foreign  law,  334. 
mistake  of  foreign  laws,  304. 

Forfeitures.     See  Penalties  and  forfeitures. 
Formal  facts,  pleading  of.     163. 

Former  judgment,  defense  of. 

defense  of  former  judgment  (form),  248. 
in  action  for  debt  (form),  1285. 

action  for  restoration  of  lands  and  for  value  of  rents  and  profits,  1087. 
action  relating  to  trusts  (form),  1153. 


INDEX.  2063 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-  19G9.] 

Former  judgment,  defense  of  (continued). 

dismissed  attachment  suit  not  a  bar  to  replevin,  1650. 
divorce— former  judgment  as  defense  and  counterclaim,  499. 
judgment  of  dismissal — when  bar  to  another  action,  271. 
petition  failing  to  show  prosecution  to  final  judgment,  271. 
plea  of  former  adjudication,  271. 
in  divorce  (form),  485. 
in  trover  or  detinue,  1605. 
res  adjudicata,  defense  of,  271. 

Franchise,  usurpation  of.     See  Quo  warranto. 

Fraud   and    deceit.     See,   also,    Fraudulent   transfers    and    assignments;    Re- 
scission, 
action  for  deceit— when  maintainable— cause  of  action  stated,  1581. 
actual  fraud  defined,  300. 
bill  in  equity — fraud  in  general  terms,  1582. 
common-law  count  for  money  had  and  received  not  sufficient  averment 

for  cause  of  action  for  fraud,  1293. 
complaint— against  vendor,  for  deceit  connected   with  the  sale  of  land 
(form),  1569. 
for  cancelation  of  void  contract  on  grounds  of  fraud  and  deceit  (form) 

1567. 
for  fraud  in  obtaining  goods  on  credit  (form),  1568. 
for   fraudulently   inducing   subscription   to   stock   where   device   of   a 

secret  agreement  is  employed   (form),  1572. 
for  fraudulently  procuring  credit  for  another  (form),  1569. 
for  fraudulently  representing  goods   sold  to  be  the  property  of  the 

seller  (form),  1573. 
to  recover  property  obtained  by  fraud  and  collusion,  and  to  adjudge 

plaintiffs  the  owners  thereof  (form),  1575. 
to  rescind  contract  of  exchange  for  fraud   (form),  1573. 
to  rescind  contract  for  purchase  of  stock  induced  by  fraud  (form),  1570. 
conclusions  not  pleadable,  1582. 

consent — when  deemed  to  have  been  obtained  by  fraud,  etc.,  298. 
constructive  fraud  defined,  300. 
constructive  fraud — manner  of  pleading,  1582. 
contracts  not  reduced  to  writing  through  fraud— when  enforceable  against 

party  practising  fraud,  318. 
creditors'  suit,  by  one  suing  on  behalf  of  himself  and  others  (form),  1584. 
deceit  defined,  1567. 
deceit — liability  of  deceiver,  1566. 

defendant's  knowledge  of  the  falsity  must  be  averred,  1582. 
defense— as  to  value— when  not  permitted,  1583. 

of  false  representations  and  no  consideration  (form),  306. 
of  false  representations  as  to  commission  of  a  supposed  felony  (form) 
307. 


2064  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  n,  pages  1239-1969.1 

Fraud  and  deceit  (continued). 

defense — of  misrepresentation  and   concealment  in   obtaining  insurance 
(form),  1352. 
of  fraud  and  failure  of  consideration,  331. 
that  contract  does  not  conform  to  oral  agreement,  1583. 
that  writing  declared  upon  in  complaint  departed  from  oral  agreement 
in  substantial  and  material  respects,  and  was  entered  into  through 
false  and  fraudulent  representations  of  plaintiff's  agent — action  to 
recover  for  goods  sold  and  delivered  (form),  1578. 
denial  of  fraud  (form),  1577. 

election  between  remedies  in  cases  of  fraud,  1583. 
essential  allegations,  1581. 
fraud — actual  or  constructive,  299. 
general  charge  of  insufficient,  1582. 
issue  of  essential  in  civil  arrest  proceedings,  1622. 
when  not  necessary  to  allege  in  action  by  beneficiary  against  trustee, 
1157. 
Jurisdiction  acquired  by  court  of  law,  1582. 

order  to  show  cause  and  preliminary  injunction — action  to  rescind  con- 
tract for  fraud  (form),  1579. 
possession  of  escrow  deed  fraudulently  obtained,  332. 
preventing  recovery  on  fraudulent  instrument,  1582. 
specific  pleading  of  fraud,  332,  1582. 
waiver  as  to  averring  specific  facts,  1582. 
words  "fraud,"  "unlawful,"  "wilful,"  etc. — import  of,  in  pleading,  1582. 

Fraudulent  transfers  and  assignments. 

assignment  antedating  judgment,  1594. 

averment  in  defense  that  defendant  has  assets  (form),  1590. 

complaint — against  debtor,  to  reach  demands  due  him  from  third  parties, 
and  for  appointment  of  receiver  (form),  1585. 
against  judgment  debtor,  to  set  aside  fraudulent  judgment  and  sale 

(form),  1589. 
against  judgment  debtor  and  his  assignee,  to  set  aside  fictitious  assign- 
ment made  to  delay  and  defraud  creditors  (form),  1586. 
to  set  aside  fraudulent  conveyance  of  real  estate  made  by  judgment 
debtor  (form),  1587. 

creditor's  suit  to  reach  assets  of  a  street  railway  company,  1594. 

decree  confirming  deed  in  action  to  set  aside  the  same  as  an  alleged 
fraudulent  conveyance  (form),  1592. 

decree  following  order  sustaining  demurrer  to  complaint  and  refusal  to 
amend  (form),  1593. 

defense  that  deed  was  made  for  a  valuable  consideration  (form),  1591. 

denial  that  conveyance  was  fraudulent  (form),  1590. 

denying  return  of  execution  (form),  1590. 

denying  possession  of  property  belonging  to  the  debtor  (form),  1590. 


INDEX.  2065 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969. J 

Fraudulent  transfers  and  assignments  (continued), 
general  creditor's — rule  as  to,  1593. 

exception  to  rule,  1594. 
fraudulent  intent — rule  as  to  pleading,  1594. 
intent  to  hinder,  delay  and  defraud,  1594. 
proceeding  by  creditor's  bill  when  other  proceedings  are  Inadequate,  1594. 

Gambling  devices.    See,  also,  Unlawfulness  of  contract,  defense  of. 

defense  in  replevin — justification  of  the  taking  of  outlawed  and  gambling 
devices  (form),  1646. 

Gaming  debt.     See  Unlawfulness  of  contract,  defense  of. 

Garnishment.     See  Attachment  and  garnishment. 

General   demurrer.     See  Demurrer  to  complaint;    Demurrer  to  answer;    De- 
murrer to  reply. 

General  denial.     See  Answer;  Issues;  New  matter. 

Goods  sold  and  delivered.     See  Debt,  actions  for. 

Guaranty  and  suretyship. 

guaranty  and  suretyship,  generally,  1399. 

complaint — against  guarantor  of  mortgage,   to   recover   foreclosure   defi- 
ciency (form),  1402. 
against  guarantors  of  a  promissory  note  (form),  1406. 
against  principal  and  sureties  on  contract  for  work  (form),  1402. 
against  surety,  for  payment  of  rent  (form),  1404. 
by  surety  against  principal,  for  indemnity  (form),  1403. 
by  surety,  for  money  paid  on  undertaking  on  appeal  (form),  1399. 
by  surety,  on  lease,  against  principal  (form),  1400. 
on  agreement  to  answer  for  price  of  goods  sold  to  a  third   person 

(form),  1401. 
on  guaranty  of  antecedent  debt  (form),  1401. 

on  original  obligation  of  a  promisor,  to  repay  moneys  advanced   to 
another  upon  the  order  of  the  promisor,  the  order  itself  being  lost 
(form),  1404. 
defense  that  guarantor  had  no  notice  of  non-payment  of  note  until  after 

insolvency  of  maker  (form),  1408. 
defense   that   sureties   signed   notes    without    consideration,    and    at   the 
instance  of  the  plaintiff  only  (form),  1409. 

Guardians  of  minors  and  guardians  ad  litem.     See  also  Adoption;  Incapacity 
to  contract,  defense  of;  Minor  children,  custody  and  support  of. 
action — for  injury  or  death  of  minor  child  or  ward,  191. 

to  recover  for  estate's  benefit,  money,  goods,  etc.,  concealed,  embezzled, 

etc.,  1066. 
upon  guardian's  bond,  1068. 


2UG0  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Guardians  of  minors  and  guardians  ad  litem  (continued), 
allegation  as  to  guardian,  440. 
appearance  by  general  guardian,  440. 
application    or   petition    where    minor   is    competent    to    name    guardian 

(form),  422. 
common  law — rule  as  to  minors,  432. 

complaint — against  guardian  of  minor — or  insane  or  incompetent  person 
(form),  424. 

by  guardian  ad  litem  to  allege  appointment,  433. 

by  guardian  ad  litem  against  owner  of  vicious  animal  (form),  1535. 

by  guardian  ad  litem  in  foreclosure,  and  to  set  aside  pretended  release 
and  discharge  of  mortgage  (form),  426. 

by  guardian  ad  litem  to  recover  damages  for  personal  injuries  (form), 
425. 

by  ward  against  guardian  for  waste  (form),  425. 

for  negligent  shooting — injuries  caused  by — action  by  next  friend,  1537, 
confession  of  issue  by  guardian,  440. 
duty  of  general  guardian  to  defend,  432. 
formal  parts  of  answer — by  infant  (form),  58. 

by  insane  person  (form),  58. 
general  denial  not  sufficient  to  raise  issue  of  appointment,  433. 
guardian  ad  litem — how  appointed,  417. 

appointment  upon  ex  parte  application,  432. 

practice  as  to  appointment  most  favored,  440. 

appointment  by  filing  petition  the  better  practice,  432. 

to  represent  minor,  432. 
guardians  to  appear  and  defend  for  wards,  1064. 
infant — to  appear  by  guardian,  414. 

suing  by  general  guardian  (form),  19. 

suing  by  guardian  ad  litem  (form),  19. 
jurisdiction  to  appoint — how  obtained,  432. 
non-appointment  of  guardian — when  mere  irregularity,  433. 
note  executed  by  infant  for  necessaries,  433. 
order  appointing  guardian  ad  litem  for  a  minor  (form),  423. 
order  permitting  filing  of  complaint  in  intervention  by  guardian  ad  litem 

(form),  423. 
petition  where  minor  may  not  name  guardian  (form),  422. 
powers  of  guardian  generally  as  to  the  estate  of  the  ward,  1065. 
receipt  and  release — by  guardian  ad  litem  (form),  431. 

by  parent  of  right  of  action,  etc.,  for  injuries  to  minor  child  (form),  431. 
removal  of  guardian,  1069. 
rights  of  minors,  how  enforced.  412, 

Habeas  corpus  proceedings. 

commitment  without  reasonable  or  probable  cause,  1947. 

extradition,  1948. 

petition  for  writ  (form),  1944. 


INDEX.  2067 

CReferences  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Habeas  corpus  proceedings  (continued), 
order  granting  writ  (form),  1945. 

order — denying  writ  and  remanding  prisoner  (form),  1947. 
for  discharge  of  prisoner  (form),  1947. 

directing  trial  court  to  give  a  petitioner  in  habeas  corpus  proceedings 
time  in   which  to  pursue  his  remedy  by  appeal   from  judgment, 
1947. 
plea  of  once  in  jeopardy,  1948. 
return  to  writ  of  habeas  corpus  or  certiorari  other  than  official  (form), 

1946. 
writ  of  habeas  corpus  (form),  1945. 
writ — when  denied,  1948. 
when  granted,  1948. 

Habitual  Intemperance.     See  Divorce  (causes  for). 

Heirship  and  interest  in  estates,  actions  to  determine, 
contests  by  heirs,  1047. 
California  statute  construed,  1063. 

complaint  to  determine  heirship  and  interest  in  an  estate  (form),  1062. 
jurisdiction  of  courts  to  determine  heirship  interest  in  estates,  etc.,  1063. 
proceedings  generally  to  determine  heirship,  ownership,  and  interest  in 
estates,  1048. 

Hiring  of  personal  property.     See  Personal  property,  hiring  of. 

Homestead.     See,  also,  Homesteads,  appraisal  of. 

foreclosure — intervention  by  wife  to  set  up  homestead  right,  729. 
wife  necessaiy  party  in  action  to  foreclose  upon  homestead,  246. 

Homesteads,  appraisal  of. 

appraisers — appointment  of,  1165. 

compensation  of,  1174. 

oath  of,  1166. 

report  of,  1168. 
bids  to  exceed  exemption,  1171. 
costs — provisions  as  to,  1175. 

decree  in  action  for  foreclosure  of  mortgage,  and  providing  for  home- 
stead exemption  fund  (form),  1177. 
determining  value  and  divisibility,  1167. 
filing  petition,  1164. 

husband  and  wife  must  be  joined  in  homestead  action,  1179. 
injunction — when  lies  against  forced  sale,  1179. 
money  equal  to  homestead  exemption  protected  after  sale,  1173. 
notice  of  hearing  and  service  thereof,  1164. 
order  directing  sale — when  made,  1170. 
petition  to  appraise,  1163. 
petition  to  appraise  homestead  after  levy  of  execution  (form),  1175. 


2068  INDEX. 

[References  are  to  pages.    VoL  I,  pages  1-1238;  Vol.  n,  pages  1239-1969.] 

Homesteads,  appraisal  of  (continued). 

procedure  on  filing  of  petition  (under  California  statutes),  117i. 
proceedings  on  execution  against  homestead,  1157. 
proceeds  of  sale — application  of,  1172. 
setting  apart  homestead  exemption,  1168. 

Hotelkeepers.     See  Innkeepers. 

Husband  and  wife  as  parties.     See,  also,  Debt,  actions  for,  246. 

Idiocy.     See  Incompetents. 

Illegality  of  contract.     See,  also,  Unlawfulness  of  contract;  Statute  of  frauds. 
defense  of  illegality  of  contract,  333. 
gambling  or  lottery  scheme,  333. 

Implied   contracts.     See  Debt,  actions  for;    Money  paid  for  the  benefit  of 
another, 
assumption  of  obligation  by  acceptance  of  benefits,  302. 
implied  contract  defined,  318. 

Impotency.     See  Annulment  of  marriage  (causes  for). 

Imprisonment.     See  False  imprisonment. 

Incapacity  to  contract,  defense  of. 

acceptance — absolute  and  qualified,  301. 
consent — apparent,  when  not  free,  298. 

mutuality  of,  299. 

ratification  of  contract,  void  for  want  of,  302. 

revocation  of  proposal,  301. 

when  voidable,  298. 
defense — based  upon  incapacity  of  parties  to  contract,  2S&. 

not  available  under  general  denial,  333. 

of  incapacity  to  contract — minority  (form),  296. 

defendant  an  Indian   (form),  297. 

unsoundness  of  mind  (form),  296. 
elements,  essential,  of  contract,  295. 
essentials  of  consent,  298. 
incapacity  to  contract,  generally,  333. 
minors  and  insane  persons,  capacity  of,  296. 
waiver  by  failure  to  plead,  333. 

Incapacity  to  sue.     See,  also,  Demurrer  to  complaint;  Incapacity  to  contract, 
defense  of. 
as  to  curability  of,  273. 
defense  that  discharge  and  restoration  to  capacity  were  unauthorized  and 

void  (form),  438. 
proof  as  to  capacity  of  foreign  corporation  to  sue,  273. 
substance  of  petition  sufficiently  showing  capacity  to  sue,  440. 


INDEX.  2069 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  IT,  i  vges  1239-1969.] 

Incompetents.  See,  also,  Insane  persons,  actions  by  ana  against  their 
guardians;  Insanity,  proceedings  in;  Incapacity  to  sue. 

action  by  incompetent  person,  through  his  guardian,  to  recover  trust 
moneys  held  by  an  administrator  to  his  use  (form),  434. 

allegation  of  incompetency  (form),  1024. 

Indebitatus  assumpsit.     See  Assumpsit;  Debt,  actions  for. 

Indemnity  bonds.     See  Bonds  and  undertakings. 

Infants,  actions  by  and  against.     See  Guardians,  actions  by  and  against. 

Infants,  answers  by,  formal  parts.     See  Answer. 

Infants,  offenses  by.     See  Juvenile  courts. 

Information  and  belief,  pleading  on.     See,  also,  Pleading  in  general;    Com- 
plaint (or  petition) ;  Answer, 
allegations  on  information  and  belief — when  not  permitted, 
contempt  proceedings — affidavit  upon  information  and  belief,  1866. 

Inheritance,  injuries  to.  See  Covenants,  title,  and  possession  of  real 
property. 

Injunction.    See,  also,  Nuisance. 

complaint — to  enjoin  obstruction  maintained  by  railroad  corporation  along 
public  highway  (form),  1661. 
for  injunction  against  waste  (form),  1659. 

for  injunction  pendente  lite  to  restrain  continuance  of  trespass  (form), 
1666. 
discretion  of  court — granting  temporary  injunction  pendente  lite,  1671. 
California  rule  as  to,  in  granting  or  continuing  injunction,  1671. 
is  legal  one,  1671. 
dissolving  injunction  upon  appeal,  1672. 
dissolving  temporary  injunction — rule,  1671. 
ejectment,  when  the  proper  remedy,  and  not  injunction,  1670. 
exception  to  the  rule  as  to  dissolving  writ  where  matters  are  denied  In 

answer,  1671. 
injunction — generally,  1651. 
nature  of  remedy  of,  1670. 
to  prevent  breach  of  an  obligation,  1652. 
to  prevent  trespass  by  interference  with  right,  1238. 
will  not  lie  to  enjoin  collection  of  tax  for  mere  informalities,  692. 
judgment  for  defendant  dissolving  temporary  injunction,  etc.,  in  action 
to  restrain  church  society  from  converting  church  property,  mis- 
directing its  use,  etc.  (form),  1668. 
mandatory  injunctions  not  favored,  1671. 
motion  to  dissolve,  1671. 

decision  on  merits  not  permitted,  1672. 
Jury's  PL— 131. 


2070  INDEX. 

CReferences  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Injunction  (continued). 

order — dissolving  or  modifying  injunction  (form),  1667. 

granting  motion  dissolving  injunction  (form),  1667. 

to  show  cause,  and  interlocutory  injunction  (form),  1663. 
petition  for  injunction,  when  sufficient.  1671. 

plain,  speedy,  and  adequate  remedy  at  law  precludes  injunction,  1670. 
prayer  for  injunction,  damages,  etc.  (form),  1204. 
preliminary  injunction  restraining  diversion  of  waters  of  river   (form), 

1215. 
preventive  relief — how  granted,  1651. 
prohibition  to  restrain  injunction  proceedings,  893. 
provisional  injunctions,  1652. 
remedy  as  against  party  not  a  trespasser,  1670. 
restraining  order  in  equity  should  be  definite  and  certain,  1671. 
rights  protected  by  statue  not  abridged,  1670. 
showing  to  entitle  to  injunction  to  restrain  collection  of  tax,  692. 
temporary  injunction   pendente   lite,   conditioned   on   giving  of   bond   by 

plaintiff  (form),  1664. 
temporary  writ  of  injunction  improvidently  issued,  1672. 
undertaking  on  injunction  (form),  1666. 

when  injunction  may  and  when  it  cannot  be  granted,  1652,  1653. 
when  injunction  will  not  lie,  1671. 

Injuries.    See  Damages;  and  particular  actions  founded  upon  wrongs. 

Innkeepers. 

complaint — against  an  innkeeper,  for  loss  of  baggage  (form).  1308. 

against  innkeeper,  for  refusal  to  receive  and  lodge  guest  (form),  1309. 
by  innkeeper,  for  board  and  lodging  (form),  1310. 

by  guest,  to  recover  for  loss  of  pocket-book  containing  money   (form), 
1309. 
defense  that  plaintiff  was  not  a  guest  (form),  1310. 

defense  where  moneys  or  other  valuables  lost  were  not  deposited   with 
innkeeper  for  safe-keeping  (form),  1310. 
,    liability  of  innkeepers,  1301. 
limiting  of  liability,  1303. 
lien  for  charges  on  baggage,  1306. 

Insane  persons,  actions  by  and  against  their  guardians. 

complaint — against  guardian  (or  committee)  of  lunatic,  etc.  (form),  20. 
by  guardian  (or  committee)  of  lunatic,  etc.  (form),  20. 
to   recover  sum   for  care,   etc.,   of   insane   person   confined    in    state 
hospital  (form),  435. 
foreclosure  judgment  against  insane  person,  440. 
formal  parts  of  answer  by  insane  person  (form),  58. 

insane  person  must  be  made  party  before  jurisdiction  to  appoint  guardian 
is  acquired,  440. 


INDEX.  2071 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 
Insane  person,  answer  by,  formal  parts.     See  Answer. 

Insanity,  proceedings  in  cases  of. 
affidavit  of  insanity  (form),  1949. 
certificate — of  arresting  officer  (form),  1950. 

of  clerk  to  affidavit,  etc.,  judgment  of  insanity,  order  of  commitment, 

etc. — annexed  to  judgment  (form),  1954. 
of  medical  examiners  (form),  1950. 
charges  of  insanity,  and  proceedings  thereon,  1948. 
judgment  of  insanity  and  order  of  commitment  of  insane  person  (form), 

1952. 
statement  of  facts  (form),  1951. 
statement  of  financial  ability  (form),  1954. 
warrant  of  arrest — insane  person  (form),  1949. 

Inspection  of  writings.     See  Bill  of  particulars. 

Instalment  contracts.     See  Contracts,  generally. 

Instructions.     See,  also,  Trials. 

abstract  instruction — when  prejudicial,  1864. 

rale  as  to,  not  an  inflexible  one,  1864. 
erroneous  instruction — when  not  prejudicial,  1864. 
not  error  to  refuse  incorrect  charge,  1S64. 
repetitions  in  charges  properly  refused,  1864. 

Insurance. 

insurance,  generally,  1335. 
allegation  of  renewal  (form),  1350. 
any  breach  pleadable,  1357. 
averment — as  to  ownership,  1357. 

of  waiver  of  condition  (form),  1351. 

where  plaintiff  purchased  the  property  after  Insurance  (form),  1351. 
complaint — by  assignee  in  trust  for  wife  of  insured  (form),  1344. 

by  executor  on  life  policy  (form),  1343. 

by  mortgagee  as  assignee  of  the  policy  (form),  1337. 

by  wife,  partner,  or  creditor  of  insured  (form),  1344. 

for  partial  loss  and  contribution — marine  policy  (form),  1350. 

upon  agreement  to  insure  and  give  policy  (form),  1342. 

upon  fire  insurance  policy  (form),  1336. 

upon  fire  insurance  policy — total  loss  (form),  1337. 

upon  fire  insurance  policy — with  averments  as  to  waiver  of  written 
statement,  (form),  1339. 

upon  marine  policy — vessel  lost  by  perils  of  the  sea  (form),  1349. 

upon  open  marine  policy  (form),  1348. 

upon  valued  marine  policy  (form),  1347. 
conditions — general  averment  of  performance  of,  1357. 


2072  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Insurance  (continued). 

defense — in  general,  1357. 

in  action  to  recover  insurance  money,  1356. 

of  forfeiture  of  policy  for  non-payment  of  premium  (form),  1353. 

of  fraudulent  overvaluation,  1357. 

of  loss  remotely  caused  by  peril  not  insured  against,  58. 

of  overinsurance  without  consent  of  insurer  (form),  1352. 

of  transfer  without  insurer's  consent  (form),  1354. 

that  fraudulent  account  of  loss  was  given  (form),  1354. 

that  risk  was  extra-hazardous  (form),  1354. 

that  vessel  was  unseaworthy  (form),  1355. 

based  upon  denial  of  loss  (form),  1351. 

setting  forth  "fallen   building"   clause  in   action   upon  fire   insurance 
policy  (form),  1352. 
denial — of  averments  as  to  waiver  of  conditions,  etc.  (form),  1353. 

of  furnishing  proofs  of  death  (form),  1353. 

of  indebtedness  under  the  policy  (form),  1353. 

of  loss  from  peril  or  risk  insured  against  (form),  1355. 

of  plaintiff's  interest  (form),  1351. 

of  policy  (form),  1351.     . 
insurable  interest  not  required  to  be  averred,  1356. 
life  insurance — essentials  of  a  complaint  in  action  to  recover  insurance 

moneys,  1356. 
property  insurance — general  rule  as  to  pleading  loss,  1357. 

Intemperance,  habitual.     See  Divorce  (causes  for). 

Interest.     See  Damages. 

Interpleader. 

interplea  in  attachment,  1701. 
interpleader — complaint  in  (form),  223. 

as  to  corporation  stock  in  escrow,  601. 

to  determine  beneficial  interest  in  life  insurance  policy  (form),  1345. 
substitution  of  another  person  as  defendant,  207. 

Intervention. 

intervention — by  guardian  ad  litem,  order  permitting  (form),  423. 
by  trustee,  201. 
when  and  how  pleaded,  210. 
in  action  to  determine  water-rights  and  to  restrain  diversion  of  water 

by  canals,  etc.  (form),  1205. 
in  attachment  proceedings,  1701. 
in  ejectment,  1135. 

Intoxicating  liquors.     See  Civil  damage  acts. 

Involuntary  trusts.     See  Money  had  and  received. 


INDEX.  2073 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Irrelevant  pleadings.     See  Sham  and  irrelevant  pleadings. 

Irresistible  superhuman  cause,  as  defense, 
defense — of  so-called  act  of  God,  277. 

alleging  irresistible  superhuman  cause — act  of  God  (form),  268. 
goods  lost  by  unavoidable  accident  (form),  1477. 

Irrigation  and  reclamation.     See,  also,  Water-rights  and  riparian  owners, 
averments — damage  to  crop,  1237. 

ownership  of  lands,  and  as  to  system  established  by  contract  for  irri 

gation  (form),  1125. 
right  to  use  pipe-line  as  tenant  in  common  (form),  1226. 
dependence  upon  use  of  pipe-line  (form),  1227. 
complaint  to  enjoin  interference  with  irrigating  waters  furnished  through 

pipe-line  over  defendant's  land  (form),  1225. 
conditional  decree,  1238. 
constitutionality  of  acts,  1237. 

legality  not  open  to  collateral  attack,  1237. 
Kansas  drainage  law  construed,  1237. 
decree  approving  and  confirming  proceedings  authorizing  the  issue  and 

sale  of  bonds  of  an  irrigation  district  (form),  1235. 
defense  in  bar  of  action  to  obtain  decree  enjoining  sale  of  bonds  of  irriga- 
tion district  organized  under  act  of  the  legislature  (form),  1231. 
defense  of  failure  of  benefits  by  reason  of  inexcusable  non-feasance  upon 
part     of     commissioners — action    to    foreclose    statutory    lien    on 
swamp  land  for  reclamation  work  (form),  1232. 
diversion  of  irrigation  ditch — changing  point  of  same,  1237. 
measure  of  damages  for  breach  of  irrigation  contract,  1237. 
perpetual  water-rights — reference,  1237. 
rights  of  lower  riparian  claimants,  1238. 
specific  demand — when  not  necessary  to  aver,  1237. 

Issues. 

application  to  present  new  issues  by  amendment,  107. 
demurrable  issue  not  raised  by  the  answer,  68. 
effect  of  consolidation  of  causes  as  to  issues  and  pleadings,  1865. 
issue  of  appointment  of  guardian  not  raised  by  general  denial,  433. 
issues  not  raised  by  general  denial,  71. 

new  issues,  when  not  raised  by  answer  in  action  to  recover  for  necessa- 
ries, 514. 
striking  out  irrelevant  issues  where  defense  is  under  general  denial,  71. 
traverses  and  defenses,  70. 

Jeopardy,  plea  of.     See  Habeas  corpus. 

Joinder  of  defenses  or  counterclaims.     See  Counterclaim  and  set-off. 


2074  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Joinder,  misjoinder,  and  non-joinder  of  parties.     See,  also,  Demurrer  to  com- 
plaint, or  petition, 
actions  affecting  persons  severally  liable,  241. 
defect  of  parties,  or  non-joinder,  66,  1210. 

defense — defect  of  parties  defendant  or  non-joinder  (form),  595. 
effect  of  failure  to  object  to  husband's  non-joinder,  246. 
husband  improperly  joined,  246. 

husband  and  wife,  joinder  of,  in  action  relating  to  the  homestead,  1179. 
joinder  of  wife  in  action  to  foreclose  upon  homestead,  731. 
joinder  of  stockholders  as  defendants,  619. 
joinder  of  defenses  or  counterclaims,  86. 
joint  adverse  interest  not  essential  to  joinder,  246. 
joint  tort-feasors,  246. 
misjoinder  of  parties,  demurrer  for,  66. 
misjoinder  of  parties  plaintiff,  defense  of,  in  action  relating  to  water-rights 

(form),  1210. 
misjoinder  and  non-joinder  of  parties — generally,  236. 

objection  to  defect,  etc.,  or  misjoinder — how  raised,  245. 

question  of  misjoinder  not  affected  by  pleading  legal  conclusions,  245. 
non-joinder  of  necessary  parties,  defense  of,  in  action  relating  to  water- 
rights  (form),  1210. 
parties   defendant  in  an  action   to  determine  conflicting  claims   to   real 

property,  238. 
parties  holding  title  under  a  common  source,  when  may  join,  239. 
partners  as  parties  plaintiff,  non-joinder  of,  1323. 
who  may  be  joined  as  defendants,  237. 
who  may  be  joined  as  plaintiffs,  236. 

Joinder,  or  uniting  of  causes. 

causes  not  separately  stated,  66. 

cause  must  affect  all  parties  defendant,  78. 

complaint  praying  for  actual  and  exemplary  damages,  79. 

complaint  where  one  of  several  counts  is  good,  79. 

defense  of  misjoinder  of  causes  of  action — action  relating  to  water-rights 

(form),  1209. 
demands  for  money  received,  79. 
joinder  of  causes — generally,  74,  78. 
actions  on  contract  and  for  tort,  79. 

action  for  injuries  to  property  joined  with  action  on  a  bond,  682. 
demand  for  recovery  of  purchase  money  joined  with  claim  for  damages, 

128. 
joinder  of  action  for  failure  to  levy  with  action  for  conversion,  682. 
joinder  of  action  for  specific  performance  with  action  for  damages, 

1773. 
joinder  of  legal  and  equitable  defenses,  79. 
plea  to  jurisdiction  united  with  plea  to  the  merits,  79. 
rule  as  to  "splitting"  cause,  79. 


INDEX.  2075 

[References  are  to  pages.    Vol.  I,  pa^os  1-1238;  Vol.  II,  pages  1239-19C9.] 

Joinder,  or  uniting  of  causes  (continued). 

objection  as  to  misjoinder — when  it  may  be  raised — statutes  construed,  80. 

misjoinder,  question  of,  raised  by  motion,  80. 

specifying  misjoinder  of  causes,  45. 
statement  in  separate  counts,  79. 

sufficient  statement  joined  with  defective  count,  80. 
tort  and  breach  of  contract — pleading  in  one  count,  1479. 
tortious  injury  to  property — to  recover  for,  79. 

Joint  debtors.     See,  also,  Contribution  between  joint  debtors, 
dismissal  as  to  one  or  more  joint  debtors,  1870. 
pleadings  in  actions  against  joint  debtors — what  constitutes,  844. 

Judgments,  or  decrees.     See,  also,  Judgments,  actions  upon;  Judgments,  ar- 
rest of;   Judgments,  vacating  of;   Judgment  upon  the  pleadings; 
Verdicts.     (For  judgments  or  decrees  in  actions  and  proceedings 
generally,  see  the  specific  titles.) 
alternative  judgment  for  plaintiff  in  replevin  (form),  1636. 
amended  judgment  for  defendant  (form),  1880. 
confession  of  judgment  (form),  1881. 

without  action,  1881. 
consent  of  plaintiff  to  reduction  of  judgment  (form),  1878. 
contempt — judgment  for,  must  specify  the  contempt,  1866. 
entry  of  judgment — confessed  (form),  1882. 

Iowa  statutes  relating  to,  1883. 

irregular  entry,  1883. 

judgment,  distinguished  from  entry,  1883. 
joint  judgment  against  defendants  guilty  of  tort,  1884. 
judgment — for  defendant  (form),  1875. 

for  plaintiff  by  the  court  (form),  1874. 

for  plaintiff  on  verdict — entry  by  clerk  (form),  1876. 

of  dismissal — entry  by  clerk  (form),  1876. 

of  default— entry  by  clerk  (form),  1877. 

of  nonsuit  (form),  1868. 

in  action  for  alienating  affections,  403. 

in  civil  action  for  assault,  etc.,  367. 

respecting  boycotts  and  unlawful  strikes  (form),  1561. 

actions  for  breach  of  contract  to  sell  (form),  1261. 

in  cancellation  of  instruments  (form),  1800. 

in  proceeding  for  contempt  of  court  against  a  witness  for  refusing  to 
answer  a  relevant  and  material  question  (form),  1862. 

recitals   and   judgment   for   a   contempt   of   court   committed    in    the 
presence  of  the  court  (form),  1862. 

in  actions  for  death  by  wrongful  act  (form,,  1501. 

in  ejectment  (form),  1132. 

for  false  imprisonment,  348. 

for  fraudulent  transfers,  etc.  (form),  1592. 


2076 


INDEX. 


[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Judgments,  or  decrees  (continued). 

judgment — decree,  foreclosure  sales,  and  report  of  sales  (forms),  717. 

for  foreclosure  of  mortgage,  and  providing  for  homestead  exemption 
fund  (form),  1177. 

in  foreclosure  of  chattel  mortgages  (form),  1415. 

foreclosure  of  mechanics'  liens  (form),  947. 

in  injunction  (form),  1663. 

relating  to  irrigation  and  reclamation  (form),  1235. 

upon  issue  of  law  where  unliquidated  damages  are  claimed,  1884. 

in  action  for  libel,  or  slander,  387. 

in  action  for  malicious  prosecution,  360. 

in  proceeding  for  maintenance  of  minor  children  (form),  536. 

for  exclusive  control  of  minor  children,  530. 

to  quiet  title  (form),  784. 
judgment  upon  the  pleadings  (see  separate  index  heading),  1885. 

action  relating  to  title  and  possession  of  real  property  (form),  1088. 

in  replevin  (form),  1637. 

for  rescission  (form),  1789. 

in  specific  performance  (form),  1770. 

in  actions  relating  to  water-rights  and  riparian  owners  (form),  1217. 
maintenance  of  wife,  decree  for— when  court  may  not  modify,  515. 
notices  of  decision,  1829,  1830. 

nunc  pro  tunc  order  reducing  judgment  (form),  1879. 
order  of  sheriff's  sale  of  real  estate  under  judgment  (form),  1880. 
order  and  decree  in  actions  for  fraud,  1579. 
personal  judgment  not  valid  against  non-resident,  1884. 
satisfaction  of  judgment  for  costs  (form),  1879. 

showing  of  meritorious  defense  not  required  on  motion  to  vacate,  where 
decree  is  void,  130. 

Judgments,  actions  upon. 

actions  upon  judgments  generally,  1439. 

affidavit    accompanying   application   for  leave   to   sue   upon   a   judgment 

(form),  1440. 
complaint— for  judgment  wholly  unpaid  (form),  1441. 

foreign  judgment  of  court  of  general  jurisdiction  (form),  1444. 

foreign  judgment  of  inferior  tribunal  (form),  1444. 

judgment  assigned  (form),  1443. 

judgment  partially  satisfied  (form),  1442. 

judgment  for  deficiency  after  foreclosure  sale  (form),  1442. 
decree  in  proceeding  to  vacate  former  judgment,  1447. 
defense— of  payment  of  judgment  (form),  1445. 

of  invalidity  of  foreign  judgment  (form),  1446. 

of  invalidity  of  judgment  against  non-resident  (form),  1446. 

of  vacation  of  judgment  (form),  1445. 

that  judgment  was  obtained  by  fraud  (form),  1445. 


INDEX.  2077 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  n,  pages  1239-1969. 1 

Judgments,  actions  upon  (continued), 
judgment  procured  by  fraud,  1447. 
leave  to  sue  upon  a  judgment,  1439. 

notice  of  motion  for  (form),  1439. 

order  granting  (form),  1441. 
remedy  against  an  illegal  judgment,  1447. 
scire  facias  proceeding  to  revive  the  lien  of  a  Judgment,  1447. 

Judgment,  arrest  of.     See,  also,  Judgments,  vacating  of.     Motions, 
motion  in  arrest  of  judgment — generally,  1884. 
for  defect  in  verdict,  1884. 

remedy  by,  where  findings  are  imperfect,  1883. 
when  defendant  may  invoke  motion,  1884. 

Judgment,  pleading  of.     See,  also,  Pleading,  in  general, 
pleading  a  judgment  or  order,  generally,  167. 

Judgment,  vacating  of.     See,  also,  Judgments,  arrest  of;  Motions. 

affidavit  of  merits  by  attorney  on  motion  to  set  aside  judgment,  131. 
authority  to  vacate  or  alter  judgments  or  orders,  130. 
decree  in  proceeding  to  vacate  former  judgment,  1447. 
irregularities  upon  which  motion  to  set  aside  judgment  is  based,  130. 
motion  to  vacate  judgment  for  error  of  fact — Missouri  practice,  1884. 
motion  to  vacate  a  judgment,  charging  the  fact  of  death,  1885. 
relief  provided  may  be  invoked  by  all  parties,  130. 

Judgment  upon  the  pleadings. 

judgment  upon  the  pleadings — generally,  1885. 

in  action  to  quiet  title  (form),  788. 
judgment  upon  issue  of  law   where  unliquidated   damages  are  claimed, 

1884. 
motion  for  judgment — not  substitute  for  demurrer,  1885. 

admits  truth  of  pleas,  1885. 

proper  when  denials  are  only  of  conclusions,  1885. 

for  judgment  non  obstante  veredicto,  1884. 
relation  of  inconsistent  defenses  to  the  motion,  1885. 

Arizona  practice,  1885. 
waiver  of  motion,  1885. 

Jurisdiction. 

affidavit  as  a  basis  of  jurisdiction,  1849. 
agreeing  to  reset  a  cause,  1810. 
alimony — jurisdiction  to  order  payment  of,  515. 
answer  praying  for  affirmative  relief,  1810. 
challenge  to  jurisdiction,  how  regarded,  62. 
consent  as  conferring  jurisdiction,  1810. 
consenting  or  agreeing  to  a  continuance,  1810. 


2078  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  tl,  pages  1239-1969.] 

Jurisdiction  (continued). 

contempt — jurisdiction  to  punish  for,  1865. 

authority  of  judges  at  chambers,  1865. 

proceeding  in  vacation,  1865. 

before  United  States  commissioner,  1865. 

where  application  to  punish  for  should  be  made,  1866. 
defects  of  jurisdiction  as  to  the  person — how  charged,  66,  67. 
discretionary  authority  of  courts  of  equity  to  consolidate  causes,  1865. 
entry  of  judgment  terminates  jurisdiction,  1811. 
errors  in  exercise  of  jurisdiction,  893. 
essentials  of  jurisdiction,  1810. 

foreign  jurisdiction — suits  by  representatives  in,  1030. 
general  jurisdiction  of  state  courts  coextensive  with  their  sovereignty, 

1810. 
government  as  party — jurisdiction  of  state  courts,  1811. 
guardians  ad  litem,  jurisdiction  to  appoint — how  obtained,  432. 
inherent  authority  of  courts  to  order  dismissal,  1869. 
insufficiency  of  pleading  does  not  affect,  62. 

jurisdiction  of  actions — claims  against  estates  of  deceased  persons,  1030. 
jurisdiction  to  render  personal  judgment,  1810. 

personal  judgment  not  valid  against  non-resident,  1884. 
local  actions,  1811. 

minors  as  apprentices,  jurisdiction  of  courts  to  bind,  555. 
non-resident  debtors,  1810. 

notice  of  motion  for  judgment  on  the  pleadings  (form),  1877. 
order   granting   motion   for   judgment   on   the   pleadings    on    sustaining 

demurrer  without  leave  to  amend  (form),  1878. 
publication  of  notice  as  prerequisite  to  jurisdiction,  1811. 
question  of  jurisdiction  on  demurrer,  65. 
statutory  penalties,  jurisdiction  to  recover,  1811. 
transitory  actions,  1811. 

Jurisdiction,  absence  of,  as  ground  for  demurrer.    See  Demurrer  to  complaint. 

Jurisdiction,  denial  of.     See  Answer. 

Jurisdiction,  denial  by  foreign  corporation.     See  Answer. 

Justification,    as    defense.      See    Wrongs,    defenses    to    actions    for;    Libel; 
Slander;  Arrest  and  bail. 

Juvenile  courts. 

affidavit  on  application  for  a  permit  for  a  minor  child  to  work — California 

(form),  1968. 
approval  of  commitment  by  superior  judge  (form),  1968. 
bench-warrant — California  (form),  1965. 
certificate  of  service  of  citation — California  (form),  1962. 
citation  to  parent  or  custodian — California  (form),  1961. 


INDEX.  2079 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Juvenile  courts  (continued). 

commitment  of  delinquent  child— California  (form),  1964. 
commitment  of  dependent  child— California  (form),  1963. 
endorsement  of  receipt  of  commitment  (form),  1967. 
notice  to  parents,  custodian,  or  guardian — Utah  (form),  1962. 
order— admitting  to  bail— California  (form),  1966. 
granting  permit  (form),  1969. 
of  commitment  to  school  of  industry— from  court  of  record,  California 

(form),  1966. 
of  commitment  to  boys'  school  of  industry — from  court  of  limited  juris- 
diction, California  (form),  1967. 
directing  time  of  service  of  bench-warrant — California  (form),  1965. 
petition   for  arrest  and   examination  of  a  delinquent    minor — California 

(form),  1961. 
proceedings  in  juvenile  courts,  generally,  1958. 
recommendation  that  permit  issue  (form),  1969. 
references  to  statutes,  1960. 
request  for  information  concerning  delinquent  endorsed  on  commitment 

(form),  1967. 
return  endorsed  upon  bench-warrant — California  (form),  1965. 
sheriff's  certificate  of  service  of  subpoena— California  (form),  1963. 
subpoena — California  (form),  1963. 

Labor   unions.      See,    also,    Boycotts;    Unlawful   strikes;    Conspiracies    and 
monopolies, 
right  to  trade-names,  1613. 

Laches,  defense  of. 

affirmative  showing  of  plaintiff's  laches  not  required,  276. 

authorities  requiring  affirmative  showing,  276. 
defense  of  laches  (form),  595. 

action  against  a  city  board  (form),  666. 
delay — when  excuse  for  will  not  avail,  277. 
mere  delay  will  not  bar  action,  277. 
rule  as  to  laches,  275,  276. 
rule  as  to  pleading  laches — exception,  276. 
suit  brought  after  statutory  time,  277. 

Land,  actions  relating  to.  See  Covenants,  title  and  possession;  Vendor  and 
vendee;  Ejectment;  Waste;  Trespass;  Water-rights  and  riparian 
owners;  Builders'  contracts;  Forcible  and  unlawful  entry  and 
detainer;  Foreclosure;  etc. 

Landlord  and  tenant. 

landlord  and  tenant  generally,  1106. 

action  for  possession  with  right  of  re-entry,  1108. 

complaint — against  assignee  of  lessee  (form),  1111, 


2080  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Landlord  and  tenant  (continued). 

complaint — against  lessee  by  grantee  of  reversion  (form),  1112. 

against  landlord  on  covenant  for  quiet  enjoyment  (form),  1114. 

by  lessee  against  lessor  on  covenant  to  keep  in  repair  (form),  1113. 

by  lessee  for  non-completion  of  building  (form),  1115. 

for  purchase  money  for  surrender  of  lease  (form),  1115. 

for  rent  reserved  in  lease  (form),  1111. 

for  use  and  occupation  (form),  1111. 

for  use  and  occupation  of  pasture  (form),  1114. 

on  covenant  to  insure  (form),  1113. 
counterclaim  for  damages,  1118. 
damages  for  breach  of  covenants  of  a  lease,  1118. 
defense — of  assignment  by  lessee  (form),  1117. 

of  eviction  before  rent  payable  (form),  1116. 

of  destruction  by  accidental  fire  (form),  1117. 

of  invalidity  of  lease  sued  upon  (form),  325. 

of  surrender  of  premises  and  release  (form),  1117. 

by  surety,  alleging  extension  of  time  without  his  consent  (form),  1117. 
forfeiture  for  non-payment  of  rent,  1118. 
quantum  meruit  where  written  lease  is  denied,  1118. 
lease,  change  of  terms,  1110. 

remedies  of  lessees  against  lessors  and  their  assigns,  1109. 
terminating  tenancy  at  will,  1107. 

Laws  of  foreign  state.     See  Foreign  laws. 

Lease.     See  Landlord  and  tenant. 

Levy.     See  Sheriffs  and  constables. 

Liability  of  employers.     See  Employers'  liability  cases,  and  actions  against 
employees. 

Liability  of  stockholders.    See  Stockholders'  liability,  actions  based  upon. 

Libel. 

action  embracing  different  libelous  articles,  389. 

affirmative  proof  of  mitigating  circumstances — special  pleading,  391. 

allegations  upon  information  and  belief,  389. 

answer  in  action  for  libel  or  slander,  174. 

averments — loss  of  credit  (form),  384. 

loss  of  custom  (form),  384. 

loss  of  employment  (form),  383. 

loss  of  situation  (form),  384. 
complaint  in  action  for  libel— generally,  173. 

when  insufficient,  388. 

for  damages  for  libelous  publication  against  public  officer  (form),  376. 

charge  against  public  officer  importing  corruption,  etc.,  389. 


INDEX.  2031 

[References  are  to  pages.    Vol.  I    pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Libel    (continued). 

complaint  in  action  for  libel— charge  of  dishonesty  in  business  (form),  378. 

charging  criminal  offense  (form),  380. 

charge  of  crime — words  not  libelous  in  themselves  (form),  380. 

charge  of  perjury  requiring  colloquium  (form),  381. 

directly  charging  perjury  (form),  381. 

libel  relating  to  profession  (form),  377. 

libel  respecting  plaintiff's  trade  (form),  379. 

words  exposing  to  hatred,  contempt,  etc.  (form),  374. 

words  libelous  in  themselves  (form),  373. 
colloquium  and  innuendo,  390. 

what  colloquium  is  required  to  show,  390. 

purpose  of  innuendo,  390,  391. 

matters  of  inducement,  391. 
conclusive  presumption  of  malice,  389. 

counterclaim  of  slander  against  slander  not  permissible,  390. 
damages — rule  as  to  assessing,  392. 

averments  of  special  damages,  383. 

exemplary  damages,  392. 

punitive  damages,  391. 

special  damages — when  unnecessary  to  allege,  391. 

when  damages  presumed  from  publication,  391. 
defense — in  mitigation  of  damages,  389. 

of  "privilege"  or  "fair  criticism,"  389,  390. 

of  truth  of  publication — when  not  permissible,  390. 

of  fair  report  of  public  official  proceedings  (form),  386. 

of  fair  and  true  report  of  the  proceedings  of  a  lawful  public  meeting 
(form),  386. 

of  justification — charge  general  (form),  384. 

of  justification — charge  specific  (form),  384. 

of  justification — charge  of  perjury  (form),  385. 

of  justification — truth  of  charge  (form),  385. 

of  justification — charge  of  want  of  chastity  (form),  385. 

of  privileged  report  made  without  malice — communication  (form),  386. 
defenses — (1)    denial,    (2)    justification,    (3)    in    mitigation     of    damages 

(form),  387. 
general  verdict — when  properly  returned,  392. 
judgment  on  verdict  in  open  court  in  action  for  libel  (form),  387. 
libel — generally,  369. 

defined,  370. 

by  corporation,  389. 
privileged  publication  defined,  372. 
proof  of  libel,  391. 

degree  of  proof  required,  391. 


2082  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Libel  (continued). 

proof  of  libel — effect  of  admission  that  article  was  libelous  per  se,  389. 

proof  or  showing  in  libel  cases  under  general  issue,  391. 
publication  of  libel  against  candidate  for  office,  389. 

Lien,  claim  of,  in  actions  and  defenses. 

defense  in  replevin  of  lien  for  services  for  manufacturing  (form),  1644. 

defense  by  common  carrier,  claiming  lien  for  services — replevin,  by  the 
United  States  of  America,  to  recover  goods  and  supplies  trans- 
ported (form),  1643. 

judgment  in  action  to  establish  equitable  subcontractor's  and  laborer's 
liens  against  municipal  improvement  fund  (form),  667. 

lien  of  depositary  for  hire,  1314. 

Liens  of  mechanics.     See  Foreclosure  of  mechanics'  liens. 

Limitations,  pleading  of  statute.     See  Statute  of  limitations,  pleading  of. 

Lis  pendens  (form),  1829. 

Loans.     See  Money  lenL 

Lost  or  destroyed  corporation  records, 
action  to  restore,  620. 

action  to  restore  lost  or  destroyed  certificates,  620,  622. 
notice  of  application  for  restoration  of  destroyed  records,  etc.  (form),  625, 
order  fixing  time  and  place  for  hearing  and  directing  clerk  to  give  notice 

(form),  626. 
petition — California  (form),  624. 
proceedings  to  restore  lost  or  destroyed  records,  624. 

Lunacy.     See  Annulment  of  marriage  (causes  for) ;   Incapacity  to  contract; 
Insane  persons,  etc.;  Insanity. 

Maintenance  of  wife.     See,  also,  Divorce,  actions  for. 
action  for  necessaries  supplied  to  the  wife,  508. 
alimony  and  action  for  support  and  maintenance,  501. 
application  for  alimony — nature  of,  515. 
averment  as  to  reasonable  amount  of  alimony,  514. 
complaint — for  alimony  (form),  509. 

against  the  husband  for  goods  furnished  the  wife  (form),  511. 

for  maintenance  of  non-resident  wife  (form),  512. 

for  necessaries  furnished  to  wife  (or  minor  child)  of  defendant  (form), 
511. 

to  recover  amounts  agreed  to  be  paid  in  lieu  of  alimony  (form),  510. 
decree  providing  for  maintenance — when  court  may  not  modify,  515. 
denial  that  things  furnished  were  necessaries  (form),  514. 
ex  parte  order  for  alimony,  515. 
jurisdiction  to  order  alimony,  515. 


INDEX.  2083 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Maintenance  of  wife  (continued). 

liability   for  necessaries  as  affected   by   abandonment  or  agreement    to 

separate,  509. 
new  issues — when  not  raised  in  the  answer,  514. 
property  subject  to  provisions  for  payment  of  alimony,  etc.,  507. 

Malicious  prosecution. 

allegations  of  malice  and  want  of  probable  cause  necessary,  360. 
answer  in  action  for  malicious  prosecution,  357. 
complaint — for  malicious  arrest  in  civil  action  (form),  352. 
for  malicious  prosecution  of  wife,  wherein  the  husband  is  joined  (form), 
353. 
for   malicious    prosecution    and    conspiracy    against   sheriff    and     his 

sureties  (form),  675. 
to    recover    damages    for   malicious    prosecution    and    for    conspiracy 

(form),  355. 
for  procuring  arrest  for  larceny  (form),  351. 
for  procuring  indictment  of  plaintiff  (form),  352. 
damages,  361. 

defense — that  act  of  arrest  was  without  the  scope  of  agent's  authority,  358. 
that  arrest  was  caused  by  act  of  plaintiff's  agent,  359. 
by  officer,  361. 
defenses — (1)  denials,  (2)  act  of  defendant's  agent  in  procuring  plaintiffs 
arrest  not  within  scope  of  agent's  authority,  (3)  that  arrest  was 
caused  by  plaintiff's  agent  (form),  357. 
effect  of  judgment,  361. 
final  termination  of  action,  361. 
joinder  of  husband  and  wife,  361. 

judgment  upon  verdict — action  wherein  the  husband  is  joined  (form),  360. 
malicious  prosecution,  generally,  350. 
substance  of  complaint  held  sufficient,  361. 

Mandamus. 

mandamus,  generally,  862. 

action  brought  by  relator,  881. 

alternative  writ  of  mandamus  (form),  877. 

answer — when  insufficient  to  put  in  issue  the  allegations  of  the  petition 

for  the  writ,  882. 
application  limited  to  the  petition,  881. 
change  of  venue — mandamus  to  secure,  1822. 
how  mandamus  proceedings  are  commenced,  881. 
mandamus  appropriate   remedy   to   compel  inspection   of  books,   etc.,   of 

corporation,  602. 
mandamus  by  judge  of  a  court  in  name  of  the  state — rule  where  court 

declines  jurisdiction,  882. 
mandate  directed  to  a  court  or  judge,  881. 
master  and  apprentice,  mandamus  to  enforce  right  of  parent,  555. 


2084  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238?  Vol.  II,  pages  1239-1969. J 

Mandamus  (continued). 

notice — writ  defective  as  to,  881. 

objection  as  to  relator  raised  by  demurrer,  881. 

objection  to  the  sufficiency  of  the  petition — defenses,  generally,  868. 

order  that  alternative  writ  issue  (form),  877. 

original  action  for  mandamus  against  a  chancellor  of  a  chancery  court  for 
a  writ  of  procedendo  or  order  from  the  supreme  court  directing 
and  requiring  the  chancellor  to  try  a  cause  transferred  to  the 
chancery  court  (form),  873. 

peremptory  writ  of  mandamus  (form),  879. 

performance  of  official  act  requiring  expenditure  of  money,  881. 

petition  for  writ  of  mandamus  (form),  870. 
for  alternative  writ  (form),  870. 

to  compel  county  auditor  to  issue  a  warrant  on  an  account  allowed  by 
a  board  of  supervisors  (form),  870. 

prayer  for  peremptory  writ,  870. 

purpose  of  writ — by  what  court  issued  and  to  whom  directed,  863. 

return  to  application  for  alternative  writ — original  proceeding  in  man- 
damus to  compel  a  judge  of  a  court  of  record  to  set  aside  an  order 
of  dismissal  entered  in  a  cause  pending,  and  to  reinstate  the  cause 
(form),  878. 

rule  where  court  declines  jurisdiction,  882. 

substitution  of  attorneys — mandate  to  compel,  881. 

verification  of  answer  to  the  petition,  867. 

writ — when  issued,  and  upon  what,  863,  865. 

writ  of  mandate  to  auditor  to  settle  for  tax  moneys,  693. 

Marine  insurance.     See  Insurance. 

Maritime  agreements.     See  Charter-party. 

Marriage.      See  Annulment  of  marriage;    Breach  of  promise  of  marriage; 
Divorce. 

Married  women  as  parties. 

action  by  wife  in  her  own  right,  201. 

complaint  by  wife  suing  alone  (form),  188. 

defense  of  coverture  of  the  defendant  (form),  1259. 

husband  and  wife  sued  together — when  wife  may  defend,  185. 

married  woman  as  a  party — when  husband  to  be  joined,  185. 

wife  sued  as  executrix,  1030. 

Master  and  apprentice. 

action  for  enticing  servant  away,  555. 

complaint  by  apprentice  against  master  (form),  553. 

enticing  away  apprentice  (form),  554. 

by  master  against  father  of  apprentice  (form),  554. 
enticing  away  apprentice,  552. 


INDEX.  2085 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  n,  pages  1239-1969.] 

Master  and  apprentice  (continued). 

infant  when  allowed  to  choose  for  himself,  555. 

jurisdiction  of  courts  to  bind  minors  as  apprentices,  555. 

liability  of  master  for  breach  of  his  covenant,  547. 

liability  of,  and  proceedings  against,  apprentices  guilty  of  misbehavior,  549. 

mandamus  to  enforce  right  of  father,  555. 

master  and  apprentice,  generally,  547. 

right  of  infant  to  recover  wages,  555. 

statutes  as  to  consent  to  be  strictly  complied  with,  555. 

words  expressing  consent  in  contract,  555. 

Master  and  servant.    See  Employers'  liability  cases,  and  actions  against  em- 
ployees; Work  and  services. 

Material  allegations.     See,  also,  Pleading,  in  general;    Complaints   [or  peti- 
tions] ;  Definiteness  and  certainty  in  pleading, 
allegations  deemed  admitted — allegations  deemed  controverted,  111. 
material  allegation  defined,  110,  129. 

Mechanics'  liens.     See  Foreclosure  of  mechanics'  liens. 

Menace,  defense  of.    See  Defenses  in  general, 
menace  defined,  299. 

.'Wining  claims,  actions  relating  to. 

actions  respecting  mining  claims — customs,  usages,  etc.,  806. 
complaint  based  upon  an  agreement  to  engage  in  the  business  of  mining 
(form),  809. 
for  accounting  upon  a  contract  for  the  sale  of  mining  claims,  to  declare 
certain  interests  therein  held  in  trust  for  the  plaintiff,  and   for 
damages  (form),  807. 
for  negligently  flooding  mining  claim  (form),  806. 
notice  of  location  annexed  to  complaint  in  action  to  quiet  title,  793. 

Minor  children,  custody  and  support  of.     See,  also,  Adoption;   Guardians  of 
minors  and  guardians  ad  litem;  Incapacity  to  contract,  defense  of. 
action — against  estate  of  parent  for  support  of  child,  532. 

by  third  person  to  recover  for  necessaries  furnished  a  child,  534. 

for  abuse  of  parental  authority,  531. 

for  exclusive  control  of  children — decree,  530. 
custody  and  support — of  minor  children,  generally,  520. 

of  legitimate  children,  529. 

of  illegitimate  children,  530. 

of  children  where  husband  and  wife  live  separately,  535. 
decree  in  proceeding  for  maintenance  (form),  536. 
liability  of  parent  as  affected  by  abandonment  by  the  child,  535. 
orders  respecting  custody,  support,  etc.,  of  minor  children,  520. 
orders  for  support  of  wife  and  children — orders  modifiable,  524. 
Jury's  PI.— 132. 


2086  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  D,   nav>-    V^^S  1W<>.] 

Minor  children,  custody  and  support  of  (continued). 

reciprocal  duties  of  parents  and  children  in  maintaining  each  other,  532. 
security  for  maintenance,  etc. — remedies  to  enforce  payment,  527. 
support  of  wife's  children  by  former  marriage,  535. 

Minors,  delinquencies  of.    See  Juvenile  courts. 

Minors,  suits  by.    See  Guardians. 

Minority.     See  Incapacity  to  contract,  defense  of;    Minor  children,  custo<?v 
and  support  of. 

Misjoinder  of  causes.     See   Demurrer  to   complaint;    Joinder  or  uniting  o* 
causes. 

Misjoinder  of  parties.     See  Joinder  and  misjoinder  of  parties;   Demurrer  to 
complaint  or  petition. 

Missing  persons,  actions  respecting  estates  of,  1018. 

Mistake.    See,  also,  Money  had  and  received;  Motions;  Rescission, 
answer  in  case  of  misnomer  (form),  57. 
mistake,  kinds  of,  303. 
mistake  of  fact  defined,  303. 
mistake  of  law  defined,  303. 

Mistakes  in  pleading. 

errors,  defects,  etc. — when  disregarded,  121. 

mistake,  neglect,  surprise,  etc.,  judgments,  orders,  etc.,  taken  by — remedies 
provided,  115. 

Money  had  and  received. 

action  for  money  had — when  it  will  not  lie  against  a  public  officer,  682. 
allegation  that  moneys  were  received  "to  or  for  the  use  of  plaintiff"  essen- 
tial, 1292- 
approved  and  usual  form  for  the  count  of  money  had  and  received,  1292. 
complaint — for  money  had  and  received  (form),  1289. 

on   assigned   claim   for  money   had   and   received,   etc. — statement  of 
cause  in  separate  counts  (form),  1289. 

for  recovery  back  of  a  wager  (form),  1290. 

to  recover  specific  moneys  lost  by  a  servant  in  gambling  (form),  1290. 
defense  of  accounting  and  payment  (form),  1292. 
denial  of  receipt  of  moneys  (form),  1292. 

money  had  and  received  and  involuntary  trusts,  generally,  1288. 
moneys  held  by  an  agent,  1293. 
moneys  paid  by  mistake,  1293. 
privity  of  contract  not  necessary,  1292. 
promise — when  not  necessary  to  allege,  1293. 
when  action  for  money  had  will  lie.  1292. 


INDEX.  2087 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.1 

Money    lent. 

complaint  for  money  lent  (form),  1294. 

by  assignee  of  lender  against  borrower  (form),  1294. 
defense  that  money  was  paid  in  settlement  of  an  antecedent  debt  (form), 

1295. 
denial  of  loan  (form),  1295. 

Money  paid  for  the  benefit  of  another. 

complaint — by   bank,    to   recover   attorney's   fees   and    expenses   Incurred 
against  a  party  who  fraudulently  obtained  a  draft  (form),  1297. 
by  endorser  who  has  paid  part  of  note  (form),  1298. 
by  landlord  against  tenant,  for  repayment  of  tax  (form),  1298. 
by  maker  of  accommodation  note  who  has  paid  the  same  (form),  1299. 
for  money  paid  to  third   person   upon  defendant's   promise   to   repay 

(form),  1296. 
for  repayment  of  money  after  judgment  reversed  (form),  1299. 
to  recover  money  overpaid  by  mistake  (form),  1296. 
money  paid  for  the  benefit  of  another,  and  on  implied  contracts,  generally, 
1296. 

Monopolies  and  conspiracies.     See  Boycotts;   Unlawful  monopolies  and  con- 
spiracies. 

Mortgages.    See  Foreclosure. 

Mortgages,  redemption  of.     See  Redemption  of  mortgages. 

Motions. 

arrest  of  judgment — when  defendant  may  invoke  motion,  1884. 

change  of  place  of  trial,  motion  for,  1814. 

defects  reached  by  motion,  66. 

leave  to  renew  motion,  1835. 

modification  of  decrees  in  divorce  by  motion,  499. 

motion  granted  on  one  of  many  grounds,  1836. 

motions  and  orders  in  attachment  and  garnishment,  1696. 

motions,  generally — definition,  "motion"  not  a  pleading,  1835. 

motion  distinguished  from  notice,  1835. 

order  to  show  cause  as  motion,  1835. 

petition  as  motion,  1835. 

motion  to  make  more  definite  and  certain — Minnesota  statute,  144. 

to  set  aside  service  and  dismiss  action,  235. 

for  judgment  on  the  pleadings — motion  not  substitute  for  demurrer, 
1885. 

to  vacate  a  judgment,  charging  the  fact  of  death,  1885. 

to  vacate  judgment  for  error  of  fact — Missouri  practice,  1884. 

remedy  to  set  aside  judgment  procured  by  fraud,  1835. 

for  judgment  non  obstante  veredicto,  1884. 

for  directed  verdict,  1883. 

for  nonsuit — law  of  the  place  governs  on  motion,  1870. 


2088  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.1 

Motions  (continued). 

motions — extent  of  waiver  of  motion  for  nonsuit,  1870. 

nonsuit — waiver  of  motion  for — Washington  practice,  1869. 

motion  for  nonsuit  equivalent  of  demurrer  to  evidence,  1869. 

motion  for  nonsuit  in  negligence  cases,  1493. 

objections  on  motion  stated  in  the  conjunctive,  1864. 

oral  motion  to  elect  between  causes  after  trial  begun,  146. 

when  defendant  waives  error  in  the  denying  of  his  motion,  1870. 

motion  to  dismiss  action  (form),  889. 

motion  to  vacate  and  set  aside  stipulation  inadvertently  entered  into 
under  a  mistake  of  fact  and  for  misrepresentations  as  to  its  effect 
(form),  123. 

motion  to  strike  pleadings  from  the  files  for  failure  to  verify  or  for 
defective  verification  (form),  161. 

motion  for  warrant  of  arrest  in  proceedings  for  contempt  for  neglect- 
ing and  refusing  to  obey  a  judgment  (form),  1861. 

Municipal  corporations,  actions  by  and  against.  See,  also,  Counties  and 
county  officers,  actions  by  and  against;  Cities  as  municipalities, 
city  boards  and  city  officers,  actions  by  and  against. 

action  against  municipality  to  recover  for  special  services,  649. 

action  upon  claims,  649. 

averment  as  to  municipal  corporation  defendant  (form),  228. 

boards,  commissions,  etc. — capacity  to  sue  and  to  be  sued,  649. 

complaint — action  to  determine  boundary  line  between  counties  (form), 
633. 

complaint  against  municipal  corporation  to  quiet  title  (form),  770. 

county  may  maintain  action  to  enjoin  obstruction  to  highway,  747. 

defense  of  adverse  possession  and  occupation  by  municipal  corporation — 
action  to  quiet  title  (form),  644. 

Judgment  establishing  boundary  lines  between  contiguous  counties  (form), 
648. 

municipality  can  not  set  up  ultra  vires  for  its  tort,  274. 

ratification  by  municipal  corporation  of  unauthorized  agent's  acts,  1335. 

splitting  demands  against  municipal  corporation — principle  as  to  actions 
generally,  668. 

Necessaries.    See  Maintenance  of  wife;  Guardians,  etc. 

Negligei;ce^--aotions  and  defenses,  generally.  See,  also,  Cities  as  municipali- 
ties, city  Doards  and  officers,  actions  by  and  against;  Contributory 
negligence,  defense  of;  Death  by  wrongful  act;  Municipal  corpora- 
tions, actions  by  and  against;  Negligence  of  carriers  of  property  or 
messages;  Negligence  of  carriers — injuries  to  passengers  not  re- 
sulting in  death;  Negligence  of  carriers — actions  by  persons  other 
than  passengers;  Negligence  of  various  persons  owing  contractual 
duty;  Negligence — miscellaneous  actions. 


INDEX.  20g9 

[References  are  to  pages.     Vol.  I.  pages  1-1238;  Vol.  II,  pages  1239-1969.) 

Negligence— actions  and  defenses,  generally  (continued), 
allegation  of  negligence  in  general  terms,  144,  1542. 
alleging  effects  of  negligence,  generally  pleaded,  31. 
general  and  particular  allegations  of  negligence,  145. 
miscellaneous  cases  of  negligence,  1540. 

Negligence  of  carriers— actions  by  persons  other  than  passengers.    See,  also, 
references  under  Negligence— actions  and  defenses  generally, 
actions  by  persons  other  than  passengers,  generally,  1506,  1528. 
averment  of  petition  for  injuries  to  stock  caused  by  neglect  of  railroad 
company  to  fence  its  road,  as  required  by  general  statute  (form) 
1525. 
complaint— for   damages   for   negligence   of   steam   railroad   company   at 
crossing  (form),  1522. 
for  damages  for  negligence  of  street  railway  company  at  street-cross- 
ing (form),  1521. 
for  damages,  against  railroad  company,   for  wanton  killing  of  stock 

(form),  1525. 
for  damages,  by  pedestrian,  for  personal  injuries  caused  by  negligence 

of  railroad  company  (form),  1524. 
for  negligent  collision  with  carriage,  or  automobile  (form),  1539. 
defense — alleging  plaintiff's  own  negligence  (form),  1539. 

based  upon  duty  of  plaintiff  to  make,  or  maintain,  cattle-fences  (form) 

1526. 
based  upon  trespass  by  animals — action  for  injuries  to  stock  alleged  to 
have  been  killed  while  on  defendant's  track  (form),  1527. 
denial  of  defendant's  ownership  of  thing  causing  injury  (form),  1539. 
denial  of  plaintiff's  ownership  of  thing  injured  or  destroyed  (form),  1540. 
duties  and  obligations  of  common  carriers,  1528. 
liability  for  killing  stock,  etc.,  1509. 
regulations  to  prevent  accidents,  1507. 
rule  as  to  right  over  street  railway  crossings,  1528. 
when  plaintiff  may  recover  notwithstanding  his  own  negligence,  1528. 

Negligence  of  carriers — actions  for  injuries  to  passengers  not  resulting  In 
death.  See,  also,  references  under  Negligence — actions  and  de- 
fenses, generally. 

actions  for  injuries  to  passengers  not  resulting  in  death,  generally,  1480. 

action  for  wrongful  expulsion — what  action  will  be,  1493. 

action  ex  delicto — pleading  contract  as  matter  of  inducement,  1492. 

alleging  cause  of  derailment  of  car  not  required,  1493. 

averment  as  to  payment  or  tender  of  fare,  1493. 

complaint — charging  gross  negligence,  1493. 

against  street  railway  corporation  for  damages  for  personal  Injuries 
sustained  by  passenger  through  negligent  and  careless  starting  of 
car  (form),  1484. 


2090  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  IT.  pages  1239-1969. J 

Negligence  of  carriers — injuries  not  resulting  in  death  (continued). 

complaint — against  common  carrier,  for  personal  injuries  resulting  from 
wrongful  ejection  of  passenger  from  street-car  (form),  1486. 
for  damages  for  forcible  ejection  from  train  (form),  1487. 
for  personal  injuries  suffered  by  wife — joining  of  husband  in  action 

(form),  1489. 
by  passenger,  for  damages  caused  by  negligent  operation  of  an  ele- 
vator (form),  1491. 
damages  for  failure  to  transport  and  deliver,  1480. 
duty  to  furnish  accommodations,  1481. 
eviction  of  passenger  refusing  fare,  1482. 
general  negligence — averment  of,  1493. 
instruction  as  to  damages  for  mental  suffering,  etc.,  1493. 
motion  for  nonsuit — statement  of  grounds,  1493. 
nature  of  action  against  carrier,  1492. 
proof  of  derailment  of  car,  1493. 
regulations  as  to  fares,  etc.,  1483. 

Negligence  of  carriers  of  property  and  messages.     See,  also,  references  under 
Negligence — actions  and  defenses,  generally, 
generally,  1471. 

action  by  endorsee  of  bill  of  lading,  1479. 
averment  that  contract  was  special  (form),  1477. 
complaint — against  common  carrier  for  negligent  loss  of  goods  (form),  1472. 

to  recover  for  goods  injured  in  transit  (form),  1472. 

for  loss  of  baggage  (form),  1473. 

for  failure  to  collect  on  delivery  (form),  1473. 

for  failure  to  deliver  at  time  agreed  (form),  1474. 

against   marine   carrier,    for   disregarding   notice   to   keep   goods   dry 
(form),  1474. 

for  negligence  in  loading  cargo  (form),  1475. 

for  loss  in  unloading  (form),  1475. 

for  breach  of  contract  by  corporation  to  carry  message  (form),  1476. 
contract  not  specifying  shipping  charges — construction  of,  1479. 
counterclaim  for  negligence  in  action  by  carrier  to  recover  freight  money 

(form),  1478. 
defense — that  defendant  is  not  a  common  carrier  (form),  1477. 

that  goods  were  negligently  packed  by  the  plaintiff  (form),  1477. 

that  goods  were  lost  by  unavoidable  accident,  etc.  (form),  1477. 

setting  forth  stipulation  as  to  value  of  property  admitted  to  have  been 
lost  through  negligence  (form),  1478. 
denial  of  contract  of  carriage  (form),  1476. 
denial  that  goods  were  received  (form),  1476. 
general  allegation  as  to  delay  in  transporting,  1479. 

liability  imported  by  allegation  that  defendant  is  common  carrier,  1479. 
storage  not  new  contract  requiring  special  pleading,  1480. 


INDEX.  2091 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Negligence  of  various  persons  owing  contractual  duty.     See,  also,  references 
under  Negligence — actions  and  defenses,  generally, 
generally,  1461. 

complaint — against  abstracters  of  title,  to  recover  damages  for  negligence 
in  reporting  upon  title  to  real  property  (form),  1469. 

against  agent,  for  carelessly  selling  to  insolvent  (form),  1463. 

against  agent,  for  negligent  delay  in  sale  of  goods  (form),  1463. 

against  attorney,  for  negligent  defense  of  action  (form),  1462. 

against  attorney,  for  negligent  prosecution  of  suit  (form),  1461. 

against  negligent  bailee  (form),  1463. 

against  dentist,  for  negligence  (form),  1465. 

against  grocer,  for  negligence  in  selling  dangerous  explosive   (form), 
1466. 

against  physician,  for  malpractice  (form),  1464. 

against  surgeon,  for  malpractice  (form),  1464. 

by  servant,  for  damages  caused  by  vicious  animal  (form),  1468. 

Mergence — miscellaneous  actions.    See,  also,  references  under  Negligence — 
actions  and  defenses,  generally. 
actions  for  negligence  generally — essential  elements  of  complaint,  1541. 
allegations  specially  pleaded  must  be  proved,  1543. 
alleging  negligence  of  defendant  in  maintaining  dangerous  electric  wires, 

1542. 
complaint,  when  deficient,  1542. 
complaint — for  injuries  caused  by  an  uninsulated  electric  wire,  1541. 

for  negligent  maintenance  of  electric-light  plant  and  system  of  wires 

connected  therewith  (form),  1530. 
for  damages  caused   by  negligent  breaking  of  a  plate-glass   window 

(form),  1532. 
for  damages  for  personal  injuries — negligence  in  maintaining  excava- 
tion in  highway  (form),  1532. 
for  negligently  managing  artificial  waterway  (form),  1533. 
for  negligently  causing  fire  (form),  1534. 
for  negligent  navigation  of  boat  (form),  1534. 
for  injuries  to  sheep  caused  by  ferocious  dog  (form),  1534. 
by  guardian  ad  litem,  for  damages  against  owners  of  vicious  animal 

(form),  1535. 
by  next  friend,  for  damages  for  personal  injuries  caused  by  negligent 

shooting  (form),  1537. 
for  damages  caused  by  falling  snow  and  ice  (form),  1538. 
for  damages  caused  by  waters  from  roof  (form),  1538. 
damages — specific  pleading  of  items,  1543. 
elements  of,  1504. 

to  infant  such  as  are  personal  to  himself,  1543. 
loss  of  services  of  child,  1504. 
pecuniary  damages,  1504. 


2092  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  H,  pages  1239-1909.J 

Negligence — miscellaneous  actions  (continued), 
damages — pecuniary  loss  as  measure  of,  1504. 

"society,  comfort,"  etc.,  1504. 

"sorrow,  grief,  and  mental  suffering,"  1504. 
defenses — in  general,  1544. 

contributory  negligence — nature  of  defense,  1544. 

contributory  negligence  must  be  specially  pleaded,  1544. 

contributory  negligence,  insufficient  pleading  of,  1544. 

contributory  negligence,  burden  of  proof  as  to,  1544. 

contributory  negligence  is  a  matter  of  defense,  1545. 

contributory  negligence — conflict  of  authorities,  1545. 

contributory  negligence,  plea  of,  in  general  terms,  1545. 
defense  must  establish  plea,  1545. 
defense  of  due  performance  of  duty,  1546. 
duty  of  defendant  must  be  shown,  1541. 
failure  to  submit  evidence  in  support  of  defense,  1545. 
injuries  caused  by  vicious  animal,  1542. 
liability  in  general,  1530. 
pleading  negligence,  manner  of— specific  and  general  allegations,  1504. 

in  general  terms,  1542. 

specific  pleading  of — doctrine  as  to,  1543. 

effect  of  pleading  specific  acts,  1543. 

negligence  the  utlimate  fact  to  be  pleaded,  1541. 

negligence  not  conclusion  of  law,  1541. 

negligence  in  miscellaneous  actions,  1529. 

negligence  and  contributory  negligence — questions  of  fact,  1506. 

physical  examination  of  plaintiff  by  defendant's  physicians,  1546. 
receipt  and  release  by  parent  of  right  of  action,  etc.,  for  injuries  to  minor 

child  (form),  431. 
receipt  and  release  by  guardian  ad  litem  (form),  431. 
right  to  present  evidence  under  averment  of  legal  conclusion  where  no 

objection  is  made  to  pleading,  1546. 
trial  and  proof— negligence  as  a  question  of  fact,  1546. 
when  plaintiff  waives  pleading  of  defense,  1545. 

Negligence   (contributory)   as  a  defense.     See,  also,  Death  by  wrongful  act; 

Assumption  of  risk,  defense  of. 
contributory  negligence  of  deceased,  defense  of,  in  action  for  death  by 

wrongful  act,  1505. 
contributory  negligence  of  parent  in  action  for  death  of  child  by  wrongful 

act,  1505. 
when  plaintiff  may  recover  notwithstanding  his  own  negligence,  1528. 

Negligence  of  fellow-servant  as  defense, 
negligence  of  fellow-servant,  1460. 
defense  based  upon  negligence  of  fellow-servant  (form),  1457. 


INDEX.  2093 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Negotiable  instruments, 
generally,  1358. 

action  by  executor  on  note  payable  to  bearer,  1030. 
attorneys'  fees  stipulated  in  note,  1398. 

averments — as    to    partnership    promissory    note    endorsed    to    plaintiffs 
(form),  1364. 

as  to  non-payment,  1397. 

as  to  transfer,  1397. 
complaint — by  first  endorsee  against  maker  (form),  1360. 

by  subsequent  endorsee  against  maker  (form),  1361. 

by  first  endorsee  against  first  endorser  (form),  1361. 

by  subsequent  endorsee  against  immediate  endorser  (form),  1361. 

by  subsequent  endorsee  against  first  endorser  (form),  1361. 

by  subsequent  endorsee  against  all  prior  parties  (form),  1362. 

on  note  wrongly  dated  (form),  1362. 

on  sight  note  (form),  1362. 

by   domestic  corporation,   payee,   against  foreign   corporation    (form), 
1363. 

by  payee,  as  receiver,  against  partners  (form),  1363. 

by  partners,  on  note  payable  to  firm  (form),  1363. 

by  payee  against  surviving  partner  (form),  1364. 

by  partners,  on  protested  promissory  note  (form),  1365. 

on  note  signed  by  agent  (form),  1366. 

on  promissory  note  executed  by  an  agent  of  a  partnership  (form),  1366. 

on  joint  and  several  promissory  note  (form),  1367. 

on  note  executed  in  another  state  (form),  1367. 

by  payee  of  bill  against  acceptor  for  non-payment  (form),  1368. 

by  payee  of  bill  against  drawer  after  non-acceptance  (form),  1368. 

for  non-payment  of  bill  payable  on  specific  date  (form),  1368. 

by  assignee  of  bill  payable  out  of  particular  fund  (form),  1369. 

by  payee  against  drawee  and  acceptor  (form),  1369. 

by  payee,  on  bill  accepted  for  honor  (form),  1370. 

by  first  endorsee  of  bill  against  acceptor  (form),  1370. 

by  endorsee  of  bill  against  first  endorser  (form),  1371. 

by  remote  endorsee  against  drawer  and  endorser  for  non-acceptance 
(form),  1371. 

by  subsequent  endorsee  of  bill  against  first  endorser  (form),  1372. 

by  subsequent  endorsee  of  bill  against  intermediate  endorser  (form), 
1372. 

by  subsequent  endorsee  of  bill  against  last  endorser  (form),  1372. 

by  first  endorsee  of  bill  against  all  prior  parties  (form),  1373. 

by  subsequent  endorsee  against  all  prior  parties  (form),  1373. 

against  a  bank,   upon  acceptance,  followed   by   refusal   to  pay   check 
(form),  1374. 

on  accepted  and  assigned  draft  (form),  1374. 

by  payee  of  check  against  drawer  (form),  1375. 


2094  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Negotiable  instruments  (continued). 

complaint — by  endorsee  or  bearer  of  check  against  drawer  (form),  1375. 
by  endorsee  or  bearer  of  check  against  drawer  and  endorser  (form), 

1376. 
to  restrain  negotiation  of  note  (form),  1660. 
omission  to  give  notice  excused  (form),  1376. 
on  guarantee  of  drafts  with  bills  of  lading  attached  (form),  1390. 
for  conversion  of  a  promissory  note  (form),  1597. 
copy  of  note  in  pleading,  1396. 

counterclaim  in  action  upon  promissory  note  (form),  1394. 
defense — note  given  in  payment  for  interest  in  land,  1398. 
of  payment  before  endorsement  (form),  1376. 

of  acceptance  of  bill  of  exchange  in  satisfaction  of  demand  (form),  292. 
of  acceptance  of  note  in  satisfaction  of  demand  (form),  292. 
that  acceptance  was  for  accommodation  (form),  1380. 
of  unauthorized  and  fraudulent  acceptance  (form),  1381. 
of  alteration  of  instrument,  in  general  (form),  1381. 
material  alteration  in  note  by  changing  the  name  of  payor  (form),  1381. 
of  no  consideration  (form),  1377. 
of  denial  (form),  1383. 
of  dishonoring  of  drafts  due  to  wrongful  acts  of  the  plaintiff  (form), 

1383. 
of  wrongful  diversion  of  surplus  moneys  which  should  have  been  ap- 
plied on  drafts  (form),  1383. 
of  failure  of  consideration  in  action  upon  note,  331. 
of  want  of  consideration  and  fraud  (form),  1377. 
of  no  consideration  based  upon  false  warranty  of  goods  sold   (form), 

1378. 
of  failure  to  deliver  agreed  security  for  acceptance  and  payment  (form), 

1383. 
of  fraud  in  procuring  note  (form),  1379. 
of  mistake  in  amount  of  note  (form),  1380. 
that  note  was  executed  for  a  pre-existing  indebtedness,  and  endorsed 

by  an  officer  of  a  corporation  without  consideration  (form),  1379. 
of  non-observance  of  instructions  accompanying  drafts,  and  failure  to 

enforce  lien  upon  bills  of  lading  (form),  1383. 
that  note  was  given  for  losses  sustained  by  sale  of  "options  on  'change," 

a  fictitious  and  gambling  transaction  (form),  1382. 
that  value  of  property  represented  by  bills  of  lading  offset  value  of 

drafts  (form),  1383. 
of  payment  (form),  1383. 

that  defendant  was  a  married  woman,  and  signed  the  note  as  surety 
only  for  her  husband  (form),  1380. 
denial — of  endorsement  (form),  1393. 
of  acceptance  (form),  1393. 
of  acceptance,  presentment,  and  protest  (form),  1393. 


INDEX.  2095 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1S69.J 

Negotiable  instruments  (continued), 
denial — of  presentment  (form),  1394. 

of  notice  (form),  1394. 

denying  excuse  for  non-presentment  (form),  1394. 
holder  may  sue  in  his  own  name,  1396. 

holding  imports  promise  to  pay— averment  as  to  execution,  1397. 
holders  other  than  those  "in  due  course,"  1397. 
infant,  note  executed  by,  for  necessaries,  433. 

issue  as  to  security  given— how  defense  is  raised  under  the  statute,  1398. 
note  falling  due  upon  happening  of  contingency,  1397. 
payment  as  defense — under  general  denial,  1398. 
place  of  execution  of  note,  1397. 

when  necessary  to  plead,  1397. 
promise  to  pay,  from  what  implied,  1397. 
promise  of  third  party  to  pay  upon  a  contingency,  1397. 

New  issues.     See  Issues;  New  matter. 

New  matter.    See,  also,  Answer  to  complaint;  General  denial;  Issues;  Reply. 

averment  of  ownership  in  defendant  not  new  matter,  794. 

new  matter  in  the  answer,  73. 

new  matter  not  affecting  thing  in  controversy,  73. 

pleader  can  not  dispute  new  matter  pleaded,  73. 

« 
New  trials. 

admission  of  service  of  notice  of  intention  (form),  1905. 

appeal — grounds  of  motion  on  review,  1933. 

conditional  order  granting  new  trial — minute  entry  (form),  1906. 

court  order  denying  motion  for  new  trial  (form),  1906. 

effect  of  motion  for  new  trial  granted,  1933. 

grounds  of  motion — specifying  of,  1933. 

perjury  as  ground  for  new  trial— Nebraska  statute,  1933. 

reference  to  papers  on  file  as  to  grounds,  1933. 

sufficient  statement  of  grounds,  1933. 
minute  order  denying  motion  for  new  trial  (form),  1905. 
minute  entry  permitting  amendment  to  notice  of  intention  to  move  for  new 
trial,    and    denying   motion   for   new   trial    upon    amended   notice 
(form),  1906. 
motion  heard  at  subsequent  term  of  court,  1933. 
notice  of  intention  to  move  for  a  new  trial — specifying  grounds   (form), 

1904. 
notice  of  order  dismissing  motion  for  new  trial  (form),  1907. 
order  dismissing  motion  for  new  trial  for  failure  to  prosecute  (form),  lS'u^. 

Next-friend  actions.    See  Guardian  of  minors,  etc. 

No  consideration  as  defense.    See  Consideration,  absence  of  as  defense. 


2096  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Non-joinder.    See  Joinder,  misjoinder,  and  non-joinder  of  parties;  Joinder  or 
uniting  of  causes. 

Nonsuit.    See,  also,  Motions. 

demurrer  to  evidence  as  equivalent  of  motion,  1869. 
judgment — of  dismissal  as  nonsuit,  1869. 

of  nonsuit  (form),  1868. 

of  nonsuit  in  action  to  quiet  title  (form),  786. 
nonsuit  and  dismissal,  generally,  1867. 
order  granting  motions  for  nonsuit,  and  allowing  additional  time  in  which 

to  prepare  and  serve  bill  of  exceptions  (form),  1867. 
waiver  of  motion  for  nonsuit — Washington  practice,  1869. 

extent  of,  1870. 
when  defendant  waives  error  in  denying  his  motion,  1870. 

Notes.    See  Negotiable  instruments. 

Notice  as  condition  precedent  to  certain  actions. 

in  actions  against  cities  or  city  officers  (form),  652. 

defense  based  upon  failure  to  give  notice,  in  employer's   liability   case, 

1455. 
notice  as  condition  precedent — Kansas  statute,  1458. 

Notices. 

generally,  1826,  1829. 

admission  of  service  of  notice,  1831. 

notice — filing  amended  pleading  (form),  101. 

of  motion  for  leave  to  amend  complaint,  or  answer  (form),  101. 

of  motion  to  amend  complaint  by  adding  a  new  party  defendant  (form), 
224. 

of  motion  to  amend  complaint  by  striking  out  and  making  new  parties 
(form),  224. 

requiring  security  for  costs  (form),  1886. 

of  motion  to  make  pleading  more  definite  and  certain  (form),  142. 

of  application  for  restoration  of  destroyed  records,  etc.  (form),  625. 

of  decision  (form),  1829. 

of  decision  in  favor  of  defendants  and  cross-complainants  (form),  1830. 

of  motion  to  dismiss  action  (form),  1831. 

to  dismiss  action  for  failure  to  prosecute  (form),  888. 

of  motion  to  compel  plaintiff  to  elect  between  several  counts  of  com- 
plaint (form),  143. 

of  overruling  demurrer  and  order  granting  time  to  answer  (form),  1831. 

of  motion  by  executor  (or  administrator)  for  leave  to  continue  action, 
and  to  file  supplemental  complaint  (form),  216. 

of  motion  for  judgment  on  the  pleadings  (form),  1877. 

of  motion  for  judgment  upon  frivolous  pleading  (form),  140. 

of  intention  to  move  for  new  trial  (form),  1904. 


INDEX.  2097 

[References  are  to  pages     Vol.  I,  pages  1-1238;  Vol.  IT,  pages  i239-1969.] 

Notices  (continued). 

notice — of  motion   for   leave  to   file   supplemental   complaint,   or   answer 
(form),  134. 

of  pendency  in  actions  relating  to  real  property,  generally,  1074. 

of  motion  to  reopen  cause  and  for  leave  to  file  amendment  to  com- 
plaint (or  answer)  to  conform  to  proof  (form),  102. 

of  motion  to  reopen  cause  and  for  leave  to  file  amendment  to  complaint 
(or  answer),  and  for  leave  to  offer  evidence  in  support  of  the  pro- 
posed amendment  (form),  102. 

of  motion  to  strike  out  irrelevant  portions  of  complaint  (form),  139. 

of  motion  to  strike  out  irrelevant,  redundant,  or  scandalous  matter 
(form),  139. 

of  motion  to  strike  out  sham  answer  or  defense  (form),  140. 

of  motion  to  substitute  officer's  successor  as  party  (form),  217. 

of  motion  for  leave  to  substitute  true  name  for  fictitious  name  in  plead- 
ing (form),  234. 

of  motion  to  vacate  judgment  and  grant  a  new  trial,  under  §  473  Cal. 
C.  C.  P.  (form),  122. 

of  time  of  trial — with  waiver  by  plaintiff  of  trial  by  jury  (form),  1830. 

to  produce  documents  for  use  on  the  trial  (form),  1830. 
notice,  preliminary  injunction,  etc.,  in  actions  relating  to  water-rights  and 
riparian  owners,  1214. 

Novation,  defense  of. 
generally,  331. 
novation — defense  of,  291. 

defined,  291. 

modes  of,  291. 

subject  to  the  rules  of  contract,  292. 

Nuisance. 

generally,  735. 

abatement — as  affecting  action  for  damages,  740. 

by  action  of  public  body  or  officer,  742. 

of  private  nuisance  by  act  of  party  injured,  743. 

of  public  nuisance,  741. 

of  public  nuisance  by  act  of  party  specially  injured,  742. 
action  by  county  to  enjoin  nuisance,  649. 

allegation  of  right  by  prior  appropriation  in  action  to  abate  (form),  745. 
complaint — sufficient  to  support  recovery  for  nuisance,  747. 

to  abate  public  nuisance  must  allege  special  damage,  747. 

for  obstructing  free  flow  of  water  (form),  745. 

to  abate  a  nuisance — slaughter-house  (form),  744. 

for  obstructing  a  private  way  (form),  744. 

for  diverting  water  from  a  quartz-miil  (form),  745. 
defective  complaint  against  municipality,  747. 


2098  INDEX- 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  IX,  pages  1239-19*9.7 

Nuisance  (continued). 

denial  of  nuisance  (form),  746. 

denial  of  plaintiff's  title  (form),  746. 

lapse  of  time  as  affecting  nuisance,  740. 

nuisance  defined,  737. 

nuisance  maintained  by  successive  owners,  740. 

parties  who  may  be  enjoined,  747. 

prescriptive  right  to  maintain  nuisance  not  acquired,  748. 

private  and  public  nuisances — actions  to  abate,  736. 

private  nuisance  defined,  739. 

private  nuisance  resulting  from  mere  omission,  743. 

public  nuisance  defined,  738. 

relator  not  necessary  party,  747. 

remedies  against  private  nuisance,  742. 

remedies  against  public  nuisance,  740. 

remedy  by  indictment,  etc.,  741. 

things  done  or  maintained  under  authority  of  statute,  739. 

Offer  to  perform.    See  Performance  and  offer  to  perform,  as  defenses. 

Office,  usurpation  of.    See  Quo  warranto. 

Oral  contracts.    See  Statute  of  frauds,  defenses  based  upon. 

Order,  pleading.    See  Judgment,  pleading  of. 

Orders.    See,  also,  Attachment  and  garnishment;  Injunction, 
generally,  1852. 

amending  record  by  nunc  pro  tunc  order,  1836. 
ex  parte  order  for  payment  of  alimony,  515. 
guardian  ad  litem,  order  appointing,  423. 
interlocutory  decree  as  an  order,  1836. 
judgment,  so-called,  as  an  order,  1836. 
"order"  defined,  1836. 
order — granting  leave  to  amend  (form),  103. 

assigning  cause  (form),  1832. 

requiring  pleading  to  be  made  more  definite  and  certain  (form),  143. 

denying  or  overruling  motion  in  general  (form),  1832. 

with  alternative  for  dismissal,  on  petition  of  defendant  to  revive  action 
(form),  220. 

appointing  guardian  ad  litem  upon  ex  parte  application,  432. 

granting  leave  to  intervene  (form),  224. 

intervention  by  guardian  ad  litem,  order  permitting  (form),  423. 

for  judgment  upon  pleading  as  frivolous  (form),  141. 

minor  children,  respecting  custody,  support,  etc.,  520. 

authorizing  change  of  name,  993. 

nunc  pro  tunc  order  reducing  judgment  (form),  1879. 

for  revivor  and  continuance — in  general  (form),  219. 


INDEX.  2099 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969. J 

Orders  (continued). 

order — reviving    action    against    representative    of    deceased    defendant 
(form),  221. 

of  sheriff's  sale  of  real  estate  under  judgment  (form),  1880. 

to  show  cause,  on  petition  of  defendant  to  revive  action  in  which  plaint- 
iff is  deceased  (form),  220. 

to  show  cause,  made  on  the  filing  of  affidavit  charging  contempt  (form), 
1861. 

on  motion  to  strike  pleading  from  the  files  (form),  1832. 

striking  out  irrelevant,  redundant,  or  scandalous  matter  (form),  141. 

striking  out  sham  pleadings  from  the  files  (form),  140. 

substituting  true  name  of  defendant  for  fictitious  name  in  complaint 
(form),  235. 

substituting  officer's  successor  as  party,  granting  time,  etc.  (form),  221. 

by  consent,  substituting  executors,  without  prejudice  to  proceedings 
already  had   (form),  221. 

substituting  administrator  as  plaintiff  (form),  222. 

of  substitution  of  executors  as  defendants  (form),  222. 

suspending  power  of  executor  (form),  1834. 

extending  time  to  plead  (form),  1832. 

granting  time  to  amend  after  sustaining  demurrer  (form),  1833. 

granting  time  to  answer  upon  overruling  demurrer  (form),  1833. 

granting  leave  to  file  supplemental  answer  (form),  135. 

granting  leave  to  file  supplemental  complaint  (form),  135. 

granting  motion  to  vacate  judgment  (form),  126. 

to  show  cause  (form),  1833. 

staying  proceedings  pending  motion  to  vacate  judgment  (form),  126. 
orders — in  attachment  and  garnishment,  1696. 
orders,  decrees,  etc.,  in  injunction,  1663. 
orders,  returns,  etc.,  in  mandamus,  877. 

Orders,  pleading  of. 

pleading  order  of  board  of  supervisors,  176. 

Ordinances  and  private  statutes,  pleading  of,  171. 

averment  as  to  ordinances  passed  by  a  board  of  supervisors  (or  commis- 
sioners) of  a  county  (form),  662. 

Particular  allegations.     See,  also,  various  index  headings  of  specific  actions, 
allegation  of  restoration  to  mental  capacity  (form),  297. 
averment  as  to  irreparable  damage  in  action  relating  to  trust,  1149. 
averments  as  to  possession  of  lands  by  plaintiff,  etc.  (form),  1198. 
description  of  real  property — how  pleaded,  166. 

Parties,  defect  of,  as  ground  of  demurrer.     See  Demurrer  to  complaint. 


2100  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Parties  in  interest. 

actions  to  be  in  the  name  of  real  party  in  interest,  178. 

real  parties  in  interest,  182. 
cause  stated  against  one  not  a  party,  65. 
executors,  trustees  of  express  trusts,  married  women,   minors,   etc.,   as 

parties,  184. 
heirs,  when  necessary  parties  in  actions  for  death  by  wrongful  act,  1503. 
joinder  of  parties  in  interest  when  one  or  more  may  sue  or  defend  for  all, 

240. 
joining  administrator  in  action  upon  joint  obligations,  1031. 
plea  that  plaintiff  is  not  the  real  party  in  interest  (form),  182. 
principal  as  real  party  in  interest,  182. 

Partition  of  real  property, 
generally,  814. 
actual  possession,  822. 
administrator  not  a  parcener,  etc.,  822. 

answer  in  partition — pleadings  where  defendant  claims  a  lien,  817. 
answer  concurring  in  prayer  of  the  petition  (form),  821. 
bringing  in  new  parties  by  amendment,  822. 
complaint  for  partition  (form),  819. 

interests  of  all  parties  known  and  unknown,  814. 

by  tenant  in  common  or  joint  tenant  against  cotenant  who  has  wasted 
the  estate  (form),  820. 
defense  of  pendency  of  action  for  dissolution  of  partnership  involving 

lands  in  partition  suit  (form),  820. 
disclaimer  not  required  to  be  accepted  unless  absolute,  822. 
facts  to  be  alleged,  822. 
parties,  822. 

partition  of  lands  in  which  there  is  a  dower  interest  (form),  819. 
possession  must  be  alleged  and  proved,  822. 
summons  in  partition — California  (form),  821. 
title  required,  822. 

Partners  as  parties.     See,  also,  Partnership  and  accounting. 
generally,  229. 

action  by  partners  on  quantum  meruit,  1287. 
averment  as  to  partnership  by  firm  name  (form),  229. 
averments  as  to  partners  in  individual  names  (form),  230. 
averments  as  to  surviving  partner  (form),  230. 

Partnership  and  accounting.  For  actions  by  and  against  partners  see  the 
various  titles,  such  as  Accounts;  Negotiable  instruments;  Debt, 
actions  for;  Sale  and  purchase;  etc. 

generally,  1319. 

complaint— for  dissolution,  accounting  and  receivership  (form),  1320. 


[NDBX.  21ul 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Partnership  and  accounting  (continued). 

complaint— for  accounting  after  dissolution  (form),  1321. 

to  restrain  late  partner  from  continuing  business  (form),  1322. 
by  one  partner  against  another,  for  breach  of  partnership  agreement 
(form),  1322. 

Passengers,  injuries  to.     See  Negligence  of  carriers,  and  references, 
action  by  partnership,  for  goods  sold  and  delivered  (form),  1278. 
complaint — for  the   dissolution   of   partnership,   and   for   accounting   and 
receivership  (form),  1320. 
for  accounting  after  dissolution  (form),  1321. 
to  restrain  late  partner  from  continuing  business   (form),  1322. 
by  one  partner  against  another,  for  breach  of  agreement  to  pay  firm 
debts  (form),  1322. 
defense  in  partition  of  pendency  of  action  for  dissolution  of  partnership 

(form).  820. 
direct  averment  of  partnership,  when  not  necessary,  231. 
general  allegations  showing  the  purpose  to  refund,  1324. 
Interest  of  single  partner — to  what  extends,  1323. 
Joint  action  at  law,  when  not  maintainable,  1324. 
nominal  narties,  1324. 
non-joinder  of  parties  plaintiff,  1323. 

Payment,  defense  of.     See  Negotiable  instruments, 
generally,  329. 
defense  of  payment  (form),  288. 

an  affirmative  defense  under  Colorado  and  Oregon  practice,  330. 

basis  of  the  Colorado  rule,  330. 

existence  of  cause  of  action  not  implied  by  payment,  329. 

meaning  of  plea,  330. 

payment  defined,  281. 
non-payment  under  general  denial,  70. 
payment  conditioned  upon  performance  of  some  act,  176. 
plea  of  non  est  factum  not  inconsistent  with  plea  of  payment,  330. 

Penalties  and  forfeitures. 

actions  for  forfeiture  against  homestead  corporations,  1752. 

action  to  recover  penalties  for  injury  to  franchise  of  corporation,  567. 

complaint — for  penalty  (form),  1753. 

for  penalty  for  violation  of  ordinance  of  board  of  supervisors   (form), 
1753. 

for  penalty  for  sale  of  liquors  without  license  (form),  1754. 

against  witness  for  disobeying  subpoena  (form),  1754. 
forfeiture  for  non-payment  of  rent,  1118. 
penalty — for  overcharging  fares,  1744. 

for  trespasses  on  property  of  corporation,  1750. 

Jury's,  PL— 133. 


2102  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Penalties  and  forfeitures — (continued). 

penalty — for  wilfully  or  maliciously  injuring  telegraph  or  telephone  prop- 
erty, 1751. 
regulations  as  to  tolls,  toll-roads — penalties,  etc.,  1745. 
relief  in  case  of  forfeiture,  1744. 

Pendency  of  action,  notice  of,  1829. 

Pendency  of  action,  defense  of. 

defense  of  another  action  pending  (form),  247. 
defense  of  pendency  of  action  in  partition  suit  (form),  820. 
pendency  of  action,  269. 
notice  of  (form),  1829. 

Performance  and  offer  to  perform,  defenses.    See,  also,  Payment,  defense  of. 
causes  excusing  performance,  287. 
custody  of  thing  offered,  286. 
defense  of  performance  (form),  288. 
defense  of  tender,  or  offer  to  perform  (form)  288. 
effect  of  offer  on  incidents  to  the  obligation,  286. 
effect  of  prevention  of  performance,  287. 
effect  of  refusal  to  accept  performance  before  offer,  288. 
extinction  of  obligations  by  general  performance,  order  of,  281. 
offer  of  performance,  282. 

conditional  offer,  284. 

upon  conditions  to  be  performed  by  creditor,  285. 

partial  performance,  282. 

by  whom  made,  282. 

to  whom  made,  282. 

when  to  be  made,  283. 

where  to  be  made,  283. 

manner  of  making,  284. 

objections  to  mode  of,  285. 
partial  performance,  280,  289. 
performance — by  debtor  under  direction  of  creditor,  280. 

by  one  of  several  joint  debtors,  279. 

extinguishes  obligation,  279. 

rendered  to  one  of  joint  creditors,  280. 
producing  the  thing  to  be  delivered,  as  to,  284. 
ratable  portion  of  consideration,  when  allowed,  287. 
thing  offered  to  be  distinct  and  separate,  285. 
time  of  performance  where  not  fixed  by  the  obligation,  284. 
waiver  of  performance — when  required  to  be  specially  pleaded,  330. 

Personal  property,  claim  and  delivery  of.     See  Replevin. 


INDEX.  2103 

[References  are  to  pages.    Vol.  I.  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Personal  property,  hiring  of. 
generally,  1300. 
complaint — for  hire  of  personal  property  (form),  1300. 

for  hire  of  piano-forte  (form),  1301. 

for  hire  of  furniture,  with  damages  for  ill-usage  (form),  1300. 

Personal  property,  injuries  to,  and  the  unlawful  detention  thereof, 
generally,  1563. 

allegation  of  demand — when  form  is  immaterial,  1565. 
complaint — for  malicious  injury  to  property  (form),  1563. 

for  wrongful  detention  of  personal  property  (form),  1563. 

to  restrain  threatened  injury  to  an  invaluable  chattel  (form),  1660. 

for  killing  or  injuring  a  valuable  animal  (form),  758. 
damages — for  wilful  or  negligent  injuries  to  animals,  1738. 

to  matured  fruit  on  trees,  and  distinguishing  from  damages  to  trees 
themselves,  1564. 

to  trees  and  timber — pleading  of,  1564. 
denial  of  damage  (form),  1564. 
denial  of  taking  or  detention  (form),  1564. 

duress  as  defense  in  action  for  property  unlawfully  detained,  1565. 
third-party  claim  not  required  to  be  alleged,  1565. 

Petitions.     See  Complaints  [or  petitions]. 

Place  of  trial,  change  of.     See  Change  of  venue;    Removal  of  causes  from 
state  to  federal  court. 

Plaintiffs.     See,  also,  Joinder,  misjoinder,  and  non-joinder  of  parties;  Parties 
in  interest, 
claim  under  distinct  titles,  246. 
general  rule  as  to  joinder  of,  246. 

Pleadings  in  general.     For  pleadings  in  particular  cases  see  separate  head- 
ings, 
actions  ex  contractu  and  actions  ex  delicto,  generally,  8. 
actions  ex  contractu,  intendments  in  favor  of,  34. 
action  ex  delicto,  pleading  in,  33. 
alleging  superfluous  matters,  31. 
as  to  actions  at  law  and  suits  in  equity,  8. 
briefs  of  counsel  can  not  supply  defects  in  the  petition.  32. 
burden  on  plaintiff  to  plead  specific  facts,  30. 
cause  as  applied  to  a  tort,  7. 

clerical  errors  immaterial  where  defendant  is  not  misled.  30. 
designation  of  the  first  pleading,  10. 

effect  of  abolishing  distinction  between  forms  of  pleading,  8. 
effect  of  consolidation  of  actions,  1865. 
essential  matter,  distinct  averment  of,  35. 
facts — how  pleaded,  30. 


2104  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Pleadings  in  general   (continued). 

facts  necessarily  implied  from  facts  pleaded,  31. 

fictions  abolished  under  the  code  system,  8. 

foreign  law  when  not  pleaded,  presumption  as  to,  32. 

formal  parts  of  pleadings  on  the  part  of  plaintiff,  13. 

forms  and  rules  of  pleading,  how  prescribed,  4. 

implied  averments — basis  of  the  rule,  129. 

motion  for  judgment  on  the  pleadings  admits  truth  of  pleas,  1885. 

parties  litigant  can  not  acquire  vested  rights  in  matters  of  procedure,  8. 

plaintiff  should  not  anticipate  defensive  matter,  31. 

plea  in  abatement  amounting  to  general  denial — trial,  1864. 

pleadings — defined,  3. 

purpose  of,  30. 

on  the  part  of  the  plaintiff,  9. 

what  pleadings  are  allowed,  5. 

pleading  damages,  1743. 

pleading  meager  facts  or  facts  of  a  general  character,  30. 

pleading  negligence — specific  and  general  allegations,  1504. 
stating  causes  of  action  separately,  34. 
usage  or  custom — pleading  not  necessary  to  admit  evidence,  31. 

Pleading  particular  facts.     See  Particular  allegations  and  averments. 

Pleas  in  bar.     See  Defenses,  generally;  also,  defenses  under  particular  head- 
ings. 

Pledges.     See  Chattel  mortgages  and  pledges. 

Political  parties,  as  parties,  232. 

Possession   of   real   property.     See   Covenants,  title   and   possession  of  real 
property,  actions  relating  to. 

Prayer    in    pleading.      See,    also,    Amendments;     Complaint    [or    petition]; 
Relief, 
generally,  33. 

prayer  for  general  relief,  33. 
prayer  for  peremptory  writ  of  mandate,  870. 
relief  granted  under  general  prayer,  33. 
relief  administered  irrespective  of  form  of  action,  1791. 

Presumptions  as  aider  of  pleadings.     See,  also,  Complaint  [or  petition];  Def- 
initeness  and  certainty, 
presumptions  after  verdict  in  aid  of  statement  of  cause,  1883. 

Preventive  relief.     See  Injunction. 

Private  statute.     See  Ordinances  and  private  statutes,  pleading  of. 


INDEX.  2105 

[References  are  to  pages.     Vol.  I.  pages  1-1238;  Vol.  II,  pagen  1239-1969.] 

Probate  contests.     See,  also,  Executors  and  administrators,  actions  by  and 
against;  Heirship  and  interest  in  estates,  actions  to  determine, 
generally,  1033. 

complaint  to  construe  a  will  (form),  1020. 
contest  of  probate  of  nuncupative  wills,  etc.,  1039. 

contest  of  will  and  proceedings  to  revoke  its  probate  special  proceedings 
1046. 

statement  of  grounds  of  contest  of  will   and   opposition   to   probate 

thereof — trial,  1033. 
contest  of  probate  of  will— fraud  and  undue  influence  (form),  1041. 
contest   after   probate— unsoundness    of    mind    and    undue    influence 

(form),  1043. 
petition  to  revoke  probate,  1036. 
contest  to  petition  for  letters  of  administration— counterpetition  for  let- 
ters, 1039. 
contract  of  heir  disposing  of  prospective  interest,  1046. 

recitals  as  to  voluntary  relinquishment  of  rights  (form),  1045. 
decree  in  probate  contest,  1044. 
dismissing  petitions  to  revoke  probate— with   preliminary  finding  as   to 

who  are  parties  interested  (form),  1044. 
heirs  appearing  by  guardian  ad  litem,  433. 
interlocutory  decree  in  probate,  1S36. 
jurisdiction  of  action  upon  a  claim,  1030. 
limitation  of  time  or  actions  upon  rejected  claims,  1015. 
procedure  upon  claim  of  superior  judge,  1017. 
proceedings  in  probate  not  "causes"  in  law  or  equity,  as  that  term  is  used 

in  Idaho  constitution,  1046. 
provisions  of  Nebraska  statute  as  to  claims  and  offsets,  1030. 
trespass  maintainable  by  heir  or  devisee,  1030. 
trials  in  probate  generally,  1046. 

Proceedings    for    appointment    of    guardians    ad    litem,    and    actions    by    and 
against  minors.     See  Guardians. 

Proceedings   for  writ   of   error  to   the   supreme   court   of   the    United    States. 
See  Removal  of  causes  from  state  to  federal  court. 

Prohibition. 

generally,  882. 

affidavit  on  application  for  writ  (form),  885. 

alternative  writ  of  prohibition  (form),  890. 

application  for  writ  (form),  884. 

contempt  proceeding — restraining  punishment  under  void  order,  893. 

garnishment  proceedings,  when  not  arrested  by  writ,  894. 

inadequacy  of  the  remedy  by  appeal  as  the  test,  892. 

injunction  proceedings — prohibition  to  restrain,  893. 

notice  of  motion  to  dismiss  action  for  failure  to  prosecute  (form),  888. 


2106  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  n,  pages  1239-1969.] 

Prohibition  (continued). 

order  for  alternative  writ  (form),  889. 

ordinance  fixing  water  rate — prohibition  does  not  lie  to  restrain  super- 
visors, 894. 
proceedings  for  writ,  884. 
receivership — prohibition  against,  893. 
restraining  proceedings  instituted  by  attorney-general,  893. 
statutory  prohibition — how  enforced,  893. 
writ  of  prohibition — when  issued,  882. 

not  applicable  to  appealable  order,  893. 

not  substitute  for  error  or  appeal,  893. 

Promissory  notes.     See  Negotiable  instruments. 

Property  of  husband  and  wife,  actions  relating  to. 

generally,  515. 

action  on  note  executed  to  wife  before  marriage,  246. 

complaint — against  husband  and  wife  on  antenuptial  debt  of  wife  (form), 
516. 

on  note  given  by  wife  when  sole  (form),  516. 

by  married  woman,  relating  to  her  separate  property  (form),  515. 
cross-corn olaint  upon  prenuptial  contract,  520. 
dower — action  for  waste  against  dowress  (form),  751. 

inchoate  right  of  dower  as  affecting  condemnation  proceedings,  974. 

partition  of  lands  in  which  a  dower  interest  exists  (form),  819. 

petition  for  dower  (form),  519. 

reply  showing  non-residence  of  wife  to  defeat  her  dower  right,  520. 
husband  as  formal  party  where  right  of  action  is  wife's,  520. 
right  of  action  for  personal  injury  to  wife,  520. 
wife  can  not  sue  alone  for  injuries  to  her  person,  520. 

Provisional  remedies  in  civil  actions.     See  Arrest  and  bail;  Attachment  and 
garnishment;  Deposit  in  court;  Injunction;  Receivers;  Replevin. 

Proximate  cause.     See  Damages. 

Public  administrators,  actions  by  and  against, 
action  by  public  administrator,  generally,  1018. 
action  by  district  attorney  against  public  administrator,  1019. 

Public  officers.    See,  also,  Sheriffs  and  constables. 

complaint  in  action  to  restrain  county  treasurer  from  paying  claims  in 

excess  of  funds  provided  for  the  purpose  (form),  641. 
decree  granting  perpetual  injunction  against  county  treasurer  enjoining 

payment  of  claims  (form),  647. 
Injury  following  wrong  of  officer  must  be  shown  to  maintain  action  for 

damages,  682. 
rival  claimants  to  public  office,  1671. 


INDEX.  2107 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Public  places  of  accommodation  or  amusement.      See  Unlawful  discrimina- 
tions, etc. 

Public  records,  certification  of.     See  Certification  of  public  records. 

Purchase.     See  Breach  of  contracts  of  sale  and  purchase. 

Quasi-civil   proceedings.     See  Disbarment  of  attorneys;    Habeas  corpus  pro- 
ceedings; Insanity,  proceedings  in;  Juvenile  courts. 

Quiet  enjoyment.     See  Covenants,  title  and  possession  of  real  property. 

Quieting  title.     See,  also,  Adverse  claims  to  real  property;    Municipal  cor- 
porations, actions  by  and  against, 
action  to  quiet  title — generally,  761,  762. 

by  administrator — averment  of  possession  in  deceased,  effect  of,  1031. 
is  cause  in  equity,  793. 
to  a  water-pipe  line,  793. 
additional    findings— action   to   quiet   title,   and   for   value   of  rents   and 

profits,  and  for  restitution  (form),  1872. 
adverse  possession — what  the  complaint  is  required  to  show,  794. 
answer — tenancy  in  common,  794. 
answer  to  cross-complaint,  781. 
averment  as  to  title  in  defendant — effect  of,  794. 

complaint— by  purchaser  deriving  title  through  an  estate  to  quiet  title  to 
right  of  way  (form),  774. 
to  confirm  and  quiet  title  to  right  of  way,  and  joining  mortgagee  as 

party  defendant  (form),  772. 
against  municipal  corporation,  646. 
against  defendant  in  possession  (form),  770. 
to  quiet  title,  and  to  cancel  alleged  forged  deed  (form),  773. 
to  remove  mortgage  as  cloud  upon  title  (form),  771. 
to  quiet  title,  and  for  value  of  rents  and  profits,  and  for  restitution 

(form),  770. 
to  quiet  title  to  prescriptive  right  to  waters  (form),  1217. 
cross-complaint  in  action — right  of  defendant  to  set  up  title,  793. 
decree  quieting  title  to  right  of  way  for  pipe-line  and  for  damages  (form), 

788. 
defense— generally — collateral  attack,  793. 

that  lands  were  held  in  trust — when  insufficient,  793. 

denials  (form),  778,  781. 

of  adverse  possession  (form),  778. 

adverse  possession  as  tenants  in  common  with  plaintiffs — action    to 

quiet  title  to  alleged  prescriptive  right  to  waters  (form),  1211. 
bar  of  the  statute  (form),  778. 

denying  genuineness  and  due  execution  of  agreement  (form),  781. 
denial  and  defense  of  ownership  (form),  777. 
of  ownership  in  defendant  (form),  778. 


2108  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Quieting  title  (continued). 

defense — to  cross-complaint — setting  forth  option  declared  upon  as  being 
without  consideration,  and  fraudulent  withholding  of  same  after 
revocation — action  to  quiet  title  against  unenforceable  option  to 
purchase  (form),  782. 
in  which  defendant  seeks  decree  quieting  title  against  plaintiff  and 
others  to  be  brought  in  (form),  778. 
disclaimer  (form),  776. 

disclaimer  in  action  for  cancelation  of  forged  deed  (form),  776. 
elements  of  a  complaint  to  quiet  title,  769. 
estate  in  defendant  to  be  specially  pleaded,  794. 
forged  deed — action  to  set  aside,  and  quiet  title  against,  793. 
general  defense  (form),  777. 

husband,  when  not  necessary  party  in  action  to  quiet  title,  246 
independent  title  created  by  adverse  possession,  794. 
judgment — for  defendant  (form),  785. 

of  nonsuit  against  plaintiff  and  cross-complainant  in  action  to  quiet 

title  (form),  786. 
for  plaintiff  upon  the  pleadings  (form),  788. 
for  plaintiff  and  for  value  of  rents  and   profits,   and   for   restitution 

(form),  784. 
where  submission  was  upon  an  agreed  statement  (form),  790. 
quieting  title  in  agricultural  association  to  lands,  and  providing  for 

writ  of  possession  (form),  791. 
upon  agreed  statement  (form),  790. 
set-off  of  value  of  improvements  made,  765. 
trespass  to  try  title — special  pleading  of  claim,  794. 

Quo  warranto.     See,  also,  ultra  vires  acts  of  corporations, 
answer  in  quo  warranto,  833. 

citizen  in  certain  cases  may  institute  proceeding,  833. 
conflicting  claimants,  834. 

county  attorney  may  institute  proceeding,  834. 
nature  of  quo  warranto,  833. 
object  of  quo  warranto,  833. 
parties — right  of  attorney-general  to  file,  833. 
pleadings — complaint  in  proceeding,  834. 

quo  warranto — for  the  involuntary  dissolution  of  a  corporation  for  exer» 
cising  a  franchise  not  conferred  by  law  (form),  832. 

action  by  attorney-general,  823. 

to  inquire  into  the  right  of  an  association  to  do  business,  829. 

to  inquire  into  right  of  non-profit  agricultural  associations,  etc.,  830. 

to  inquire  into  right  of  non-profit  co-operative  corporations,  830. 
against  appointed  officer  for  holding  over  (form),  830. 

for  recovery  of  elective  office  (form),  831. 
state  as  party,  833. 


INDEX.  2109 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Railroads.    See  Negligence  of  carriers. 

Real  property,  foreclosure  of.  See  Foreclosure  of  mortgages  on  real 
property. 

Real  property.  See  Partition;  Foreclosure;  Covenants,  title  and  possession; 
Water-rights  and  riparian  owners;  Waste;  Trespass;  Ejectment; 
Forcible  and  unlawful  entry  and  detainer. 

Receivers. 

actions  by  and  against  receivers,  generally,  1702. 

actions  by  and  against  receivers  after  their  discharge,  1713. 

action— by  receiver  appointed  pending  litigation  (form),  18. 

by  receiver  in  supplementary  proceedings  (form),  17. 

by  receiver  of  dissolved  corporation  (form),  18. 
adverse  party  essential  to  proceedings,  1712. 
appointment  of  receiver — when  court  may  appoint  of  its  own  motion,  1713. 

averment  of,  1712. 

collateral  attack  upon  order  appointing  receiver,  1713. 

when  and  in  what  cases  receivers  are  appointed,  1702. 

receivers  to  administer  affairs  of  corporations — when  appointment  in- 
valid, 1713. 
certificate  of  attorney  as  to  merits  (form),  1707. 
complaint — by  receiver  appointed  by  a  court  in  an  action  (form),  1709. 

by  receiver  of  a  mining  corporation  to  recover  assets  belonging  thereto 
(form),  1710. 

against  a  receiver  (form),  1712. 
order  authorizing  receiver  to  sue  (form),  1708. 
order  granting  leave  to  sue  a  receiver  (form),  1707. 
petition  of  receiver  for  leave  to  sue  (form),  1707. 
petition  for  leave  to  sue  a  receiver  (form),  1706. 
prohibition  against  receivership,  893. 
receiver  of  a  railway  corporation  as  party,  231. 

Reclamation.     See  Irrigation  and  reclamation. 

Records,  lost  or  destroyed.     See  Lost  or  destroyed  corporation  records. 

Redemption  of  mortgages,  and  actions  to  redeem. 

complaint — by  mortgagor  against  mortgagee  (form),  732. 

complaint  by  lessee  (form),  733. 

nature  of  action,  734. 

pleading  the  bar  of  the  statute  in  action  to  redeem,  735. 

partial  redemption  not  permitted,  735. 

parties  having  a  common  interest,  735. 

parties — redemption    by    first    mortgagee    as    successor    in    Interest    of 

mortgagor,  734. 
redemption  of  mortgages,  generally,  732. 


2110  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Redemption  of  mortgages,  and  actions  to  redeem  (continued), 
redemption  prevented  by  mistake,  734. 
right  to  redeem  as  affected  by  the  right  to  foreclose,  734. 
right  of  a  junior  mortgagee  to  redeem,  735. 
tender,  when  not  required  to  be  alleged,  735. 

Reformation  of  instruments.     See  Revision  or  reformation  of  contracts. 

Release  and  discharge,  defense  of. 
generally,  293. 

defense  of  release  and  discharge  (form),  295. 
defense  of  release  executed  (form),  295. 
general  release — claims  not  affected  by,  293. 
issue  as  to  release  when  obtained  by  fraud,  330. 
obligation  extinguished  by  release,  293. 
release  of  one  or  two  or  more  joint  debtors,  293. 

Relief.  See,  also  Cancelation  of  instruments;  Damages;  Injunction;  Penal- 
ties and  forfeitures;  Rescission;  Revision  or  reformation  of 
contracts. 

preventive  relief,  how  given,  1756. 

redress  in  law  and  equity — distinctions,  1742. 

relief  against  parties  claiming  under  person  bound  to  perform,  1759. 

species  of  relief  provided  by  the  code,  1716. 

specific  and  preventive  relief  generally,  1756. 

specific  relief,  how  given,  1756. 

Removal  of  cause  from  state  to  federal  court.     See,  also,  Change  of  venue. 
generally,  1817. 

application  for  removal  of  cause  to  federal  court,  1822. 
averment  as  to  controversy  between  citizens  of  different  states,  1822. 
bond  on  removal  of  action  from  state  to  federal  court  (form),  1819. 
citation  upon  writ  of  error  (form),  1926. 
citizenship,  diversity  of,  1822. 
citizenship  distinguished  from  residence,  1822. 
order  of  removal  made  by  state  court  (form),  1818. 

petition — for  removal  of  cause  from  state  to  federal  court  on  ground  of 
diversity  of  citizenship  (form),  1817. 

for  removal  where  a  federal  question  is  involved  (form),  1818. 

for  removal  where  action  is  brought  by  citizen  against  alien  (form), 
1818. 
writ  of  error  on  removal  (form),  1925. 

Rent.     See  Landlord  and  tenant;  Personal  property,  hiring  of. 

Replevin. 

affidavit  in  claim  and  delivery,  1626. 

affidavit  in  claim  and  delivery  of  personal  property  (form),  345. 


INDEX.  2111 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 
Replevin  (continued). 

affidavits,  undertakings,  etc.,  in  claim  and  delivery,  1633. 
allegation  as  to  ownership,  1649. 
answers,  1641. 

approval  of  undertaking  by  sheriff  (form),  1634. 
bond  in  replevin  (form),  1427. 

certificate  of  sheriff,  endorsed  upon  affidavit  (form),  346. 
claim  and  delivery  of  personal  property  or  replevin,  generally,  1623. 
compelling  delivery  of  specific  personal  property,  1632. 
time  of  making  claim,  1624. 
when  action  will  lie,  1649. 
claim  of  property  by  third  person,  and  demand  for  return  thereof  (form) 

1634. 
complaint— for  claim  and  delivery  (form),  1638. 

for  goods  taken  from  possession  of  plaintiff's  assignor  (form),  1639. 
to  recover  property  severed  from  realty  (form),  1639. 
by  married  woman,  in  replevin,  to  recover  possession  of  separate  per- 
sonal property  or  the  value  thereof  (form),  1640. 
decision  in  replevin,  1650. 
defense — as  to  demurrage  tendered,  1650. 

of  specific  denials  of  value,  etc.  (form),  1646. 

of  general  denial  (form),  1641. 

that  defendant  is  entitled  to  a  lien  on  goods  for  storage,  or  freight 

(form),  1642. 
that  title  is  in  another  than  the  plaintiff  (form),  1642. 
that  defendant  is  part  owner  (form),  1642. 
in  replevin,  by  foreign  corporation  (form),  1646. 
demand  in  replevin,  1649. 

unnecessary  where  seizin  is  unlawful,  1650. 
directed  to  the  sheriff  to  take  property  (form),  1633. 
essentials  of  complaint,  1649. 
execution  in  replevin  (form),  1638. 
gist  of  the  action  of  replevin  under  the  statutes,  1649. 
judgment  in  replevin,  1629. 
judgments  in  replevin  (forms),  1636,  1637. 
justification  of  sureties  on  undertaking  (form),  346. 
order  and  demand  to  sheriff,  endorsed  upon  affidavit  (form),  345. 
ownership  implies  right  of  possession,  1649. 
possession  in  defendant  an  essential,  1649. 

undertaking  in  claim  and  delivery  of  personal  property  (form),  346. 
verdicts  in  replevin  (forms),  1635,  1636. 

Reply  [or  replication]. 

generally,  27. 

cause  of  action  can  not  be  changed  by  the  reply,  37. 

counterclaim,  reply  to,  1288. 


2112  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Reply  [or  replication]   (continued). 

reply — as  to  new  matter  set  up  in  defense  (form),  27. 

denial  and  new  matter  (form),  27. 

denial  based  upon  insufficiency  of  knowledge  or  information  to  form  a 
belief  (form),  28. 

general  denial  to  counterclaim,  or  set-off  (form),  28. 

pleading  bar  of  the  statute  of  limitations  to  counterclaim,  or  set-off 
(form),  28. 

death  by  wrongful  act  (form),  1500. 
omission  to  file  reply,  37. 
pleading — reply  can  not  supply  fatal  defects  of  the  petition,  36. 

reply  to  be  consistent  with  the  petition,  36. 

reply  inconsistent  with  the  complaint,  or  petition,  127. 

reply  to  matter  in  avoidance,  when  directed  by  the  court  (form),  29. 

nature  of  action  not  changed  by  reply,  127. 

new  matter  in  reply,  73. 

reply  to  new  matter — under  Utah  practice,  37. 

to  what  limited — under  Kansas  statute,  37. 

reply — under  the  Washington  practice,  37. 

reply,  when  faulty  in  form,  36. 

waiver  of  reply  in  pleading,  36. 

Reply,  demurrer  to.     See  Demurrer  to  reply. 

Representatives  as  parties.  See,  also,  Executors  and  administrators; 
Guardians;  Parties  in  interest;  Receivers. 

actions  by  representatives  for  waste,  trespass,  conversion,  etc.,  1010. 

actions  against  representatives  for  waste,  trespass,  or  conversion,  com- 
mitted by  decedent,  1010. 

administrator,  joining  of,  in  action  upon  joint  obligation,  1031. 

code  rule  as  to  joining  administrator  of  deceased  obligor  supersedes  rule 
at  common  law,  1031. 

representative  in  a  foreign  jurisdiction,  suits  by,  1030. 

Rescission.     See,  also,  Rescission  as  a  defense, 
generally,  1782. 

complaint — in  equity  for  rescission,  1791. 
to  rescind  for  fraud  (form),  1783. 

to  rescind  for  mistake,  and  to  recover  payment  made  in  escrow — stat- 
ing  cause   also   in   common   count   for   money   had   and   received 
(form),  1784. 
cross-complaint  in  action  to  rescind  contract  for  purchase  of  real  estate, 

and  to  recover  portion  of  purchase  price  paid  (form),  1786. 
defense  of  no  consideration  and  of  matters  that  would  justify  a  decree  of 

rescission  (form),  1788. 
grounds  of  rescission,  310. 
judgment  as  against  party  seeking  rescission,  1783. 


INDEX.  2113 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.J 

Rescission   (continued). 

judgment — action  to  rescind  contract  for  purchase  of  stock  induced  by 
fraud  (form),  1580. 
for  defendant  and  cross-complaint — action  to  rescind  contract  for  pur- 
chase of  real  estate,  and  to  recover  portion  of  purchase  price  paid 
(form),  1789. 
petition— when  insufficient,  1791. 

pleading  defense  of  rescission  in  the  alternative,  1791. 
relief  administered  irrespective  of  form  of  action,  1791. 
rescission — extinguishes  contract,  310. 
an  equitable  remedy,  1790. 
for  fraud  or  mistake,  1790. 
for  refusal  or  neglect  to  perform,  1287. 
how  effected,  311. 
for  mistake,  1782. 

right,  when  not  affected  by  stipulation,  310. 
when  may  be  adjudged,  1782. 

Rescission  as  a  defense.     See,  also,  Rescission, 
generally,  333. 

defense  of  rescission  of  contract  by  consent  (form),  311. 
notice — when  not  a  prerequisite,  333. 

Restraint  of  trade.     See  Unlawfulness  of  contract,  defense  based  upon. 

Returns  in  attachment  and  garnishment.     1694. 

Revenue.     See  Taxes  and  revenue. 

Review.     See  Certiorari. 

Revision  or  reformation  of  contracts, 
generally,  1775. 

complaint  to  reform  a  deed  on  ground  of  mistake,  1781. 
mistake  must  be  mutual  to  entitle  to  relief,  1780. 
mortgage,  reformation  of,  and  foreclosure,  729. 
petition  for  reformation  of  a  deed  for  mistake  (form),  1776. 

to  correct  and  reform  a  deed  to  lands  for  mutual  mistake  (form),  1776. 

to  reform  written  instrument,  and  for  specific  performance  of  instru- 
ment as  reformed  (form),  1778. 
presumption  as  to  intent  of  parties,  1775. 
scope  of  inquiry  on  revision,  1776. 
specific  enforcement  of  revised  contract,  1776. 
when  contract  may  be  revised,  1775. 

Revivor.     See  Abatement  and  revival. 

Riparian  owners.     See  Water-rights  and  riparian  owners. 


2114  INDEX. 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.1 

Sale  and  purchase.  See,  also,  Breach  of  contracts  of  sale  and  purchase, 
actions  for;  Contracts,  generally;  Debt,  action  for;  Goods  sold  and 
delivered;  Warranty. 

agreement  to  buy  denned,  1250. 

agreement  to  sell  denned,  1249. 

construction  of  contract  set  out  in  pleadings,  63. 

damages,  measure  of,  for  breach  of  contract  to  buy,  1743. 

property  subject  of  agreement  for  sale,  1250. 

renunciation  of  contract,  1287. 

sale  defined,  1240. 

sale  at  auction — rights  of  buyer,  1250. 

liability  of  vendor  of  article  to  a  third  person,  1248. 

Satisfaction.     See  Accord  and  satisfaction. 

Scire  facias.     See,  also,  Writs;  Judgments,  actions  upon, 
remedy  by  scire  facias  under  Missouri  statutes,  269. 

Seduction.     See,  also,  Abduction, 
generally,  392. 
action — by  unmarried  female  for  her  own  seduction,  189. 

by  parent — when  maintainable,  405. 

by  parent — when  not  maintainable,  405. 

by  unmarried  woman,  406. 

for  seduction  of  daughter  or  ward,  190. 

for  seduction  of  minor,  405. 
alleging  ultimate  facts,  406. 
averment  from  which  chastity  is  implied,  406. 

common-law  action  for  seduction — modifications  under  the  code,  404. 
complaint — action  by  unmarried  woman — sufficiency  of,  406. 

action  by  woman  for  her  own  seduction  (form),  394. 

action  by  father  for  the  seduction  of  his  daughter  (form),  396. 

action  by  father  for  seduction  of  imbecile  daughter  (form),  397. 

action  by  unmarried  woman  for  seduction  under  promise  of  marriage 
(form),  399. 
damages  for  seduction,  1734. 
defense  of  unchastity,  406. 

Injury  to  parent  distinct  from  that  of  daughter,  407. 
Iowa  statute  as  to  seduction  construed,  404. 
judgment  on  verdict — action  by  unmarried  woman  for  seduction   (form), 

403. 
orphan  girl,  seduction  of,  405. 
parent  testifying  to  his  own  mental  suffering,  407. 
pleading  by  parent  as  plaintiff,  405. 
presumption  of  chastity,  406. 
proof  of  chastity,  407. 
remuneration  not  sole  purpose  of  action,  407. 


INDEX.  2115 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Seduction  (continued), 
rule  of  damages,  407. 
showing  as  to  betrayal,  406. 

verdict  allowing  compensatory  and  exemplary  damages  in  an  action  by 
a  married  woman  for  seduction  (form),  403. 

Separately  stating  causes.     See,  also,  Pleading  in  general;   Definiteness  and 
certainty, 
failure  to  state  causes  separately  when  not  ground  of  demurrer,  144. 
right  to  motion  to  separately  state  not  waived  by  demurrer,  144. 
waiver  of  motion  by  filing  answer,  144. 

Services.     See  Work  and  services. 

Set-off.     See  Counterclaim  and  set-off. 

Sham  and  irrelevant  pleadings, 
generally,  137. 

answer — when  regarded  as  sham,  141. 
motion  covering  matters  both  relevant  and  Irrelevant,  142. 
motion  serving  office  of  a  demurrer,  142. 

pleading  not  rendered  irrelevant  by  overstatement  of  detail,  141. 
recitals  of  evidentiary  matter,  142. 
sham  denials  upon  information  and  belief,  142. 
striking  out  immaterial  portions  of  amendment,  108. 

Sheriffs  and  constables.     See,  also,  Conversion  and  trover;   Malicious  prose- 
cution, 
actions  by  and  against  sheriffs  and  constables,  generally,  671. 
action  to  recover  surplus  attachment  moneys,  682. 

complaint — against  sheriff  for  neglecting  to  levy  writ  of  execution    on 
property  (form),  671. 
against  sheriff  for  neglect  to  return  writ  (form),  672. 
against  sheriff  for  making  false  return  (form),  673. 
against  sheriff  for  neglect  to  pay  over  moneys  collected  (form),  673. 
by  sheriff  against  sureties  upon  an  indemnifying  bond  executed  to  a 

deputy  (form),  679. 
against  sheriff  for  escape  on  order  of  arrest  (form),  674. 
against  a  constable  and  his  sureties,  alleging  arrest  without  a  warrant 
and  without  probable  cause,  beating,  and  malicious  prosecution  of 
plaintiff  by  the  constable,  while  acting  under  color  of  his  office 
(form),  678. 
for  fees  of  usurped  office  (form),  674. 
defense  by  sheriff — justification  of  taking  under  attachment  (form),  1644. 
liability  and  duty  of  sheriff  in  attachment  proceedings,  1699. 
sheriff's  certificate  of  service  (form),  347. 
sheriff's  return  of  execution  unsatisfied  (form),  1890. 

property  claimed  by  third  person  (form),  1890. 
unauthorized  release  a  tort,  682. 


2116  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Slander.     See,  also,  Libel. 

action — where  words  spoken  are  actionable  in  themselves  (form),  382. 

where  words  are  not  actionable  in  themselves  (form),  382. 

where  words  are  spoken  ironically  (form),  383. 
words  spoken  in  foreign  language  (form),  379. 
slander  defined,  371. 

Slander  of  title, 
generally,  1547. 

complaint  must  show  special  damages,  1548. 
complaint  for  slander  of  title  (form),  1547. 
damages  must  result  from  slanderous  statement,  1549. 
essentials  of  an  action  for  slander  of  title,  1548. 
interest  of  the  plaintiff  must  be  shown,  1548. 
malice  and  want  of  probable  cause,  1548. 
repetition  of  defamatory  words  by  third  person,  1549. 
whore  contract  is  binding  upon  intending  purchaser,  1549. 

Sole  traders. 

generally,  1071. 

complaint  against  married  woman  as  sole  trader  (form),  1073. 

complaint  against  sole  trader  on  a  contract  (form),  1073. 

opposition  to  petition  to  become  sole  trader,  1072. 

petition  to  become  sole  trader,  1071. 

Special  demurrer  to  answer.     See  Demurrer  to  answer. 
Special  statute,  petition  to  recover  under,  30. 

Specific  performance, 
generally,  1755. 
action  in  personam,  1773. 

agreement  to  give  personal  services  not  enforceable  specifically,  1772. 
agreement  to  sell  property  by  one  who  cannot  give  title,  1759. 
bill  in  equity  to  redeem  personal  property,  1774. 

complaint — for  specific  performance  of  an  agreement  to   make  a  lease 
(form),  1760. 
for  specific  performance  of  an  agreement  to  exchange  property  (form), 

1760. 
by  vendee,  to  compel  specific  performance  of  contract  to  convey  real 

estate  under  which  possession  was  given  (form),  1761. 
against  administrator  of  vendor's  estate,  for  specific  performance  of 
contract  made  with  decedent  (form),  1763. 
contract  to  enforce  transfer  of  corporation  stock,  1773. 
contract  for  return  of  stock — when  enforceable,  1773. 
contracts  must  be  equitable  to  be  specifically  enforced,  1774. 
adequate  consideration  must  be  shown,  1773. 


INDEX.  2117 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Specific  performance  (continued). 

contracts  must  be  equitable — rule  as  to  adequacy  of  consideration — dis- 
tinction as  between  executed  and  executory  contracts,  1774. 

fairness  of  contract  must  affirmatively  appear,  1774. 
cross-complaint,  by  defendant,  to  quiet  title  against  plaintiff  who  sues  for 

specific  performance  (form),  1765. 
defendants  in  action  for  specific  performance  and  to  establish  constructive 

trust,  245. 
defense — (1)  denials,  (2)  inadequate  and  unfair  consideration  and  fraudu- 
lent representations  (form),  1767. 

that  contract  was  not  fair  or  reasonable  (form),  1769. 

withdrawal  and  rescission  of  contract  (form),  1769. 

of  rescission  of  contract  by  agreement  of  the  parties  (form),  1766. 
demand  after  plaintiff's  tender  (form),  1766. 
denial — of  title  (form),  1766. 

of  payment  or  tender  (form),  1766. 

of  performance  (form),  1766. 

of  readiness  to  convey  (form),  1765. 
essential  averments — complaint  deficient  in,  1773. 
joinder  with  action  for  damages,  1773. 
judgment — for  plaintiff  (form),  1770. 

for  defendant  (form),  1771. 

quieting  title  of  cross-complainant  in  an  action  commenced  by  plaintiff 
for  specific  performance  (form),  1771. 

for  possession  or  title  of  real  property,  1757. 
limitation  upon  specific  and  preventive  relief,  1756. 
limitations  of  the  remedy — reference,  1772. 
mutuality  of  remedy,  1757,  1772. 
obligations  not  specifically  enforceable,  1758. 

parties  against  whom  specific  performance  cannot  be  enforced,  1758. 
parties  in  whose  favor  specific  performance  cannot  be  enforced,  1759. 
party  can  not  both  rescind  and  affirm,  1773. 

penalty  or  damages  liquidated  not  a  bar  to  specific  performance,  1757. 
prayer  for  alternative  relief.  1775. 
right,  when  negatived  by  the  bill  itself,  1773. 
tender — when  unnecessary  to  plead,  1774. 
unilateral  contracts — specific  performance  of,  1757. 

Splitting  of  demands.     See  Assignment  of  chose  in  action;  Municipal  cor- 
porations, actions  by  and  against. 

State,  actions  instituted  by  attorney-general,  or  by  or  against  the  state.     See, 
also,  Quo  warranto, 
generally,  627. 
action — by  state  or  municipal  officer  (form),  14. 

Jury's  PI.— 134. 


2118  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  "Vol.  II,  pages  1239-1969.] 

State,  actions  instituted  by  attorney-general,  etc.  (continued). 

action  by  state  on  relation  of  an  individual  (form),  14. 

complaint  in  action  by  the  people  of  the  state,  by  the  attorney-general,  to 
obtain  a  decree  declaring  a  banking  corporation  to  be  insolvent, 
ordering  involuntary  liquidation,  and  restraining  it  from  the  tran- 
saction of  any  business  except  for  the  purpose  of  liquidation 
(form),  628. 

contempt  proceedings — state  as  party  in,  1866. 

governor  of  state  as  a  party,  632. 

judgment  and  restraining  order  in  action  by  people  of  state,  630. 

judgment  upon  demurrer  sustained  without  leave  to  amend.  Action 
against  the  state  to  recover  principal  and  interest  of  bonds  issued 
under  an  act  to  open  and  establish  city  street  (form),  631. 

relator — when  not  necessary  party,  632. 

restraining  by  prohibition — proceedings  instituted  by  attorney-general,  893.. 

solvency  of  banking  institutions — how  determined,  632. 

trustees  of  state  normal  school  as  parties,  632. 

Washington  statute  as  to  parties  construed,  632. 

Stated  account.     See  Account  stated. 

Statute  of  frauds,  defenses  based  upon, 
contracts  required  to  be  in  writing,  318. 

what  contracts  may  be  oral,  318. 
defense — based  upon  statute  of  frauds,  334. 

included  under  general  denial,  334. 

invalidity  of  contract  not  performable  within  one  year  (form),  326. 

of  guaranty  not  in  writing  (form),  327. 

of  invalidity  of  agreement  upon  consideration  of  marriage  (form),  327. 

of  invalidity  of  contract  to  buy  or  sell  real  estate  (form),  326. 

of  invalidity  of  agreement  for  the  sale  of  goods,  etc.  (form),  327. 

of  invalidity  of  promise  to  answer  for  the  debt  (or  claim)  of  another 
out  of  estate  of  alleged  promisor  (form),  328. 

of  invalidity  of  land  contract  sued  upon  (form),  326. 

Statute  of  limitations. 

acknowledgment  taking  debt  out  of  operation  of  statute,  274. 

agreement  not  to  plead  the  statute,  274. 

bar  of  the  statute  of  limitations — when  taken  advantage  of  by  answer,  65. 

when  taken  advantage  of  by  demurrer,  65. 
defense  of  statute  of  limitations,  274. 
defense  of  the  statute  (form),  595. 

bar  of  the  statute — action  against  a  city  board  (form),  666. 

bar  of  the  statute  in  action  for  restoration  of  lands  and  for  value  of 
rents  and  profits,  1086. 

bar  of  foreign  statute  in  action  for  tort  (form),  336. 


INDEX.  2119 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Statute  of  limitations  (continued). 

demurrer— setting  forth  bar  of  the  statute— when  improper,  65. 

with  plea  of  the  bar  of  the  statute  of  limitations  (form),  46. 

based  on  statute  of  limitations— Alaska,  Arizona,   Iowa,    Washington, 
Wisconsin  (form),  46. 
incidental  assignment,  statute  not  pleadable  against,  433. 
mortgage  barred  when  debt  is  barred,  730. 

part  payment  or  acknowledgment — taking  demand  out  of  the  statute,  274 
pleading  the  statute  of  limitations,  170. 

in  actions  to  abate  nuisances,  748. 

in  actions  to  quiet  title,  794. 
proof  as  predicate  to  benefit  of  the  statute  of  limitations,  273. 
statutes  of  limitations  in  California — how  regarded,  274. 
time  of  commencing  action — in  reference  to  the  statute,  275. 
waiver  of  the  bar  of  the  statute,  275. 

stay  of  proceedings.     See,  also,  Appeals';  Orders;  Writs  of  error. 

notice  of  motion  to  stay  proceedings  until  security  for  costs  be  given 
(form),  1887. 

Steamers,  vessels  and  boats,  actions  against, 
generally,  834. 

complaint  to  designate  boat  by  name,  and  must  be  verified,  840. 
complaint  [or  petition]  in  action  to  enforce  lien  against  steamboat  (form), 

841. 
conflict  of  jurisdictions,  843. 
nature  of  this  proceeding,  843. 
parties  known  and  unknown — lienholders,  838. 
remedy  pursued  when  maritime  lien  arises,  843. 

state  statutes  relating  to  proceedings  against  steamers,  vessels,  etc.,  843. 
test  of  admiralty  jurisdiction,  S43. 
test  in  cases  of  tort,  843. 

Stipulations. 

generally,  1847. 

consent  of  plaintiff  to  reduction  of  judgment  (form),  1878. 
stipulation— annexed  to  answer  extending  time  in  which  to  verify  (form) 
161. 
to  dismiss  appeal  (form),  1848. 
for  filing  amended  complaint  and  acknowledgment  of  service   (form), 

101. 
as  to  facts  (form),  1S48. 

to  transfer  cause  to  another  department  (form),  1847. 
to  submit  cause  for  decision  upon  statement  of  facts  (form),  907. 
in  action  against  corporation,  on  the  expiration  of  its  charter,  to  con- 
tinue action  in  the  name  of  the  new  corporation  (form),  219. 
of  dismissal  on  compromise  (form),  1867. 


2120  INDEX- 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Stipulations  (continued). 

stipulation — to  restore  and  file  original  complaint  destroyed  by  fire  (form), 

1849. 
waiving  answer  (form),  1847. 
by  party  to  the  action,  1849. 

Stockholders.     See  Corporations,  actions  relating  to  management  and  internal 

affairs;  Stockholders'  liability,  actions  based  upon. 

Stockholders'  liability,  action  based  upon. 
generally,  602. 

action  is  essentially  one  of  contract,  616. 
ascertainment  of  extent  of  liability,  616. 
complaint — upon    note    to    recover    stockholder's    proportionate    liability 

(form),  609. 
upon  stockholder's  liability  upon  individual  and  assigned  claims,  and  to 

subject  defendant's  interest  in  mining  property  thereto  (form),  611. 
defense  denying  ownership  of  stock,  and  alleging  pledge  thereof  (form), 

613. 
defense  that  defendant  holds  stock  as  pledgee  and  not  as  owner  (form), 

613. 
liability  of  stockholders  generally,  602,  616. 
stockholders  not  held  as  partners,  616. 
when  right  of  action  accrues,  616. 

Submitting  controversy  without  action.     See  Agreed  case. 

Subscribing  of  pleadings, 
generally,  161. 

omission  to  sign  a  pleading — formal  defect,  161. 
printed  signature,  162. 
signing  after  judgment,  162. 

Subscription  agreements. 

generally,  1432. 

action  to  collect  unpaid  corporation  stock  subscriptions,  602. 
complaints  in  actions  upon  subscription  agreements,  1432. 
complaint — on  subscription  agreement  (form),  1432. 

on  subscription  agreement  for  the  building  of  a  church  (form),  1433. 
defense — denial  of  execution  of  subscription  agreement  (form),  1434. 

fraud  in  obtaining  agreement  (form),  1434. 

non-performance  of  conditions  upon  which  the  subscription  was  givek 
(form),  1434. 

Substitution  of  attorneys, 
generally,  1825. 

acknowledgment  of  notice  and  service  of  substitution  (form),  1825. 
authority  to  attorney  coupled  with  interest,  1828. 


INDEX.  2121 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Substitution  of  attorneys  (continued). 

consent  to  substitution  of  attorneys  (form),  1825. 
mandamus  to  compel  substitution,  881. 
notice  of  substitution  of  attorneys  (form),  1825. 
notice  of  substitution  by  citation— Washington  practice,  1827. 
service  of  notice  of  appeal  where  no  substitution  is  made,  1828. 
substitution  pending  appeal,  1827. 
California  procedure,  1827. 
Wisconsin  rule,  1827. 

Substitution  of  parties. 

petition— by  defendant  for  revival  of  action  in  which  plaintiff  is  deceased 
(form),  214. 
for  substitution  by  receiver  or  assignee  of  plaintiff's  title  (form),  213. 
by  surviving  plaintiff  to  compel  representative  of  deceased  co-plaintiff 
to  continue  (form),  214. 
representatives  substituted  for  heirs  as  parties  in  actions  for  death  by 
wrongful  act,  1503. 

Summons. 

generally,  1804. 

in  forcible  or  unlawful  entry  or  detainer,  912. 
affidavit  as  basis  of  order  for  service  by  publication  (form),  1806. 
alternative  relief — California  (form),  1804. 
cross-petition  in  foreclosure,  summons  upon — Kansas  statute  construed, 

728. 
defective  service  waived  by  answering  over,  1811. 

divorce— proceedings  for  publication  of  summons  in  (forms),  486,  488. 
judgment  demanded — California  (form),  1804. 
order  extending  time  to  answer  after  decision  on  motion  to  quash  (form), 

1806. 
process  under  Kansas  statute,  1812. 
purpose  of  affidavit  for  service  by  publication,  1811. 
sheriff's  certificate  of  service  of  summons  (form),  1805. 
signification  of  word  "process,"  1812. 
statutory  provisions  as  to  process,  1805. 
summons  in  partition — California  (form),  821. 
time  to  answer  pending  motion  to  quash  service,  1812. 

Supplemental  pleadings, 
generally,  131. 

action  when  prematurely  brought,  136. 
effect  of  filing  irregular  supplemental  pleading,  136. 
facts  discovered  since  former  pleading — Wisconsin  statute,  136. 
foreclosure,  amended  and  supplemental  complaint  by  substituted  plaintiff 

(form),  712. 
matters  excusing  delay  not  appropriate  to  supplemental  pleading,  136. 


2122  INDEX- 

[Reference!  ar«  to  pages.    Vol.  I.  pagea  1-1238;  Vol.  n,  pages  1239-19M.] 

Supplemental  pleadings  (continued). 

order  granting  motion  to  file  supplemental  complaint  (form),  135. 
supplemental  complaints  (forms),  132,  593. 

supplemental  complaint  averring  death  of  the  party  plaintiff  and  substitut- 
ing his  administratrix  as  a  party  (form),  133. 
supplemental  matters  not  considered  unless  embraced  in  pleadings,  136. 

Support  of  wife.     See  Maintenance  of  wife. 

Suretyship.     See  Guaranty  and  suretyship. 

Surplusage.     See  Definiteness  and  certainty;  Pleading  generally. 

Swamp  lands.     See  Irrigation  and  reclamation. 

Taxes  and  revenue,  actions  relating  to.    See,  also,  Injunction;  Mandamus, 
generally,  683. 

action  to  recover  tax  moneys  illegally  exacted,  692. 
action  to  enjoin  collection  of  illegal  tax,  691. 
complaint  by  executors  to  recover  from  municipal  corporation  taxes  paid 

under  protest  (form),  683. 
defense— based  upon  legality  of  tax— action  to  obtain  judgment  adjudicat- 
ing tax  to  be  invalid  and  void,  and  enjoining  tax-collector  from 
selling  lands  under  such  tax  (form),  689. 
that  ordinance  is  invalid  because  of  unlawful  discriminations— action  to 

recover  municipal  license  tax  (form),  688. 
of  unconstitutionality  of  an  ordinance  under  which  municipal  license 
tax  is  imposed — action  to  recover  such  tax  (form),  687. 
voluntary  payments — assumpsit,  691. 

insufficient  allegations  showing  duress,  692. 
where  mistake  is  made,  692. 

payments  under  protest  distinguished  from  voluntary  payments,  692. 
license  taxes,  693. 
tax  fraudulently  made,  692. 
taxes  partly  legal  and  partly  illegal,  692. 
test  for  interposition  by  injunction,  692. 

Tenant.     See  Landlord  and  tenant. 
Tenants  In  common,  etc.,  as  parties,  243. 
Tender,  defense  of.     See  Performance  and  offer  to  perform. 
Time  of  trial.     See  Notices;  Trial. 

Torts.     See,  also,  Damages  for  wrongs;   Wrongs,  defenses  to;    and  specific 
titles  of  wrongs. 

action  ex  delicto— pleading  contract  as  matter  of  inducement,  1492. 

joint  wrong-doers,  contribution  between,  849. 

judgment  in  action  for  tort— Kansas  statute  construed,  849. 


INDEX.  2123 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Torts  (continued). 

joint  judgment  against  defendants  guilty  of  tort,  1884. 
tort  and  breach  of  contract — pleading  in  one  count,  1479. 
waiver  of  tort  by  executors  and  suit  on  contract,  1031. 

Time  of  commencing  actions.     See  Laches;  Statute  of  limitations. 

Title.     See  Covenants,  title  and  possession  of  real  property;   Quieting  title; 
Vendor  and  vendee. 

Title,  slander  of.     See  Slander  of  title. 

Trade-marks  and  trade-signs, 
generally,  1606. 

assignee's  right  protected  by  injunction,  1613. 
counterclaim,  1613. 

injunction  to  restrain  the  use  of  one's  own  name,  1613. 
complaint  to  restrain  infringement  of  trade-mark  and  for  damages  (form), 

1612. 
requisites  of  complaint,  1613. 
right  to  good-will  of  business,  1612. 

right  to  trade-marks  and  trade-signs,  1606.  , 

state  legislation  as  to  trade-marks,  1613. 

Transcript.     See  Appeal;  Writ  of  error. 

Transitory  actions.     See,  also,  Death  by  wrongful  act;  Foreign  laws, 
foreign  state — action  maintained  in,  1504. 
pleading  laws  of  a  foreign  state,  31. 
transitory  suits  against  foreign  corporations,  273. 

Trespass. 

actions  by  representatives  for  trespass,  1010. 

actual  possession — when  necessary  to  action,  760. 

allegation  of  possession  in  the  plaintiff,  when  indispensable,  760. 

complaint — in  action  for  cutting  timber,  760. 

for  depasturing  of  land  by  permitting  cattle  to  trespass  thereon  (form), 
755. 

for  cutting  and  converting  timber  (form),  756. 

for  treble  damages  for  injuries  to  trees  (form),  756. 

for  removing  fence  (form),  756. 

for  entering  and  injuring  plaintiff's  house  (form),  757. 

for  catching  and  carrying  away  fish  (form),  757. 

for  malicious  injury  to  property  (form),  757. 
damages,  measure  of,  for  injuries  to  trees,  1740. 
damages  for  firing  woods,  1740. 
defense — specific  denial  of  breaking  (form),  758. 

of  leave  and  license  (form),  758. 

of  justification — non-repair  of  fence  (form),  758. 


2124  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.1 

Trespass  (continued). 

denial  of  plaintiff's  title  (form),  758. 
distinction  between  forms  of  trespass,  759. 
trespass  maintainable  by  lessee,  760. 

Trespass  to  try  title.     See  Quieting  title. 

Trials. 

generally,  1854. 

admissions  in  pleadings  upon  the  trial,  1863. 

authorization  to  attorney  to  compromise  pending  action  (form),  1857. 

minutes  and  certificate  of  drawing  jury  (form),  1856. 

new  trials  (see  separate  index  heading),  1904. 

notice — of  time  of  trial  (form),  1830. 

to  produce  documents  at  trial,  1830. 

of  motion  for  trial  of  special  issues  by  jury  (form),  1855. 
order — for  trial  of  special  issues  by  jury  (form),  1855. 

for  drawing  trial  jury  (form),  1854. 

consolidating  causes  for  purposes  of  trial  (form),  1857. 
probate  trials,  generally,  1046. 
statement  of  special  issues,  1855. 
unnecessary  averments  need  not  be  proved,  1864. 
venire  (form),  1854. 

Trover.     See  Conversion  and  trover. 

Trusts  and  trustees. 
generally,  1136. 

action  for  the  cancellation  of  a  trust-deed,  200. 

action  against  trustee  lies  until  accounting  made  and  trust  executed,  1156. 
allegation  as  to  a  trust  agreement — effect  of,  1156. 
assignee  holding  in  trust  for  another,  1157. 
averment — as  to  substitution  of  representative  as  plaintiff,  1147. 

as  to  failure  of  consideration  of  certain  amount  agreed  in  trust  instru- 
ment to  be  paid,  1148. 
as  to  threatened  sale  by  trustee,  1149. 
beneficiaries  of  express  trust — actions  to  enforce  performance,  1137. 
beneficiaries  to  join  in  actions  to  declare  or  enforce  trusts,  1156. 
beneficiary — when  a  necessary  party,  1157. 

complaint — in  equity,  to  follow  a  trust  fund — suit  against  husband,  1156. 
to  declare  and  enforce  resulting  trust  (form),  1141. 
to  compel  conveyance  of  certain  real  estate  held  under  resulting  or 

presumptive  trust,  and  for  accounting  (form),  1142. 
to  declare  sale  void  made  under  trust-deed  given  as  mortgage,  and  for 

accounting  against  trustee  (form),  1145. 
by  administrator  for  accounting  and  for  temporary  injunction  against 
sale  of  property  under  instrument  creating  certain  trusts,  and,  in 
effect,  an  equitable  mortgage  (form),  1147. 


INDEX.  2125 

fRfe.erences  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Trusts  and  trustees  (continued). 

declaration  of  trust  (form),  594. 

defense — of  ownership  of  lands  claimed— action  to  compel  corporation 
authorities  to  execute  alleged  trust  created  by  act  of  Congress 
(form),  1152. 
based  upon  uniting  of  church  bodies  by  constituted  authorities,  and 
following  of  church  property  into  the  united  church  body,  and 
consequent  extinction  as  a  separate  religious  body  of  that  branch 
of  the  church  theretofore  existing  under  a  separate  name — action 
to  restrain  a  religious  society  from  converting  church  property 
misdirecting  its  use,  etc.  (form),  1154. 

ecclesiastical  trusts,  1138. 

church  trust  property — departure  from  original  purpose,  1157. 
religious  societies  as  corporations  sole,  1138. 

fraud — when  not  necessary  to  allege  in  action  by  beneficiary,  1157. 

instrument  creating  certain  trusts,  1150. 

prayer  for  an  accounting  and  for  restraining  order,  1150. 

preliminary  objection  that  plaintiff  is  a  party  not  in  interest,  1156. 

restraining  disposition  of  trusts,  1137. 

statement  of  facts  constituting  the  trust,  1148. 

Trustees  of  express  trust. 

as  parties,  generally,  185,  199. 

contract  partly  for  the  benefit  of  another,  200. 

meaning  of  the  phrase  "trustee  of  an  express  trust,"  200. 

trustee  of  express  trust — county  as  such,  200. 

agent  holding  estate  property,  200. 

agent  designated  in  subscription  contract,  200. 

directors  of  an  asylum  for  insane  persons,  200. 

grantee  of  lands  for  specific  purposes,  200. 

"people,"  to  whom  official  bond  runs,  200. 

Uncertainty.     See  Demurrer  to  complaint;   Amendments  to  pleadings;   Defl- 

niteness  and  certainty. 

Unlawful  strikes.     See,  also,  Boycotts;   Conspiracies  and  monopolies;   Labor 

unions, 
complaint — against  labor  union  to  restrain  interference  with  conduct  of 

business  (form),  1855. 
complaint  to  enjoin  a  combination  and  conspiracy  to  boycott  after  strike 

declared  (form),  1560. 
judgment  in  action  to  enjoin  a  combination  and   conspiracy   to  boycott 

(form),  1561. 

Ultra  vires  of  corporation. 

acts  of  a  corporation  ultra  vires — quo  warranto,  834. 
defense  of  ultra  vires — when  not  favored,  273. 


2126  INDEX- 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Undertakings.     See  Attachment  and  garnishment;   Bonds  and  undertakings, 
actions  upon;  New  trial  and  appeal;  Replevin. 

Undue  influence,  defense  based  upon.    See,  also,  Defenses  generally, 
undue  influence  defined,  302. 

Unincorporated  societies,  as  parties,  230,  231. 

Uniting  of  causes.    See  Joinder  or  uniting  of  causes. 

Unlawful  detainer.     See  Forcible  and  unlawful  entry  and  detainer. 

Unlawful  discriminations  and  distinctions,  action  based  upon. 
generally,  408. 

accommodations  in  theaters,  411. 
action  for  wrongful  discrimination  against  colored  person — substance  of 

complaint,  411. 
citizens,  rights  of,  in  places  of  public  accommodation  or  amusement,  408. 
damages  recoverable  for  violation  of  right,  409. 
discrimination  between  sexes  in  matter  of  employment,  411. 
petition  in  action  for  damages  for  refusal  of  waiter  at  restaurant  *o  serve 

colored  person  (form),  410. 
separate  schools  for  children  of  different  races,  411. 
wrongful  refusal  to  admit  person  to  places  of  public  amusement,  410. 

Unlawful  monopolies  and  conspiracies.     See,  also,  Boycotts;  Unlawful  strikes, 
generally,  1550. 

anti-trust  actions — references,  1554. 
averment  of  damages  for  conspiracy  of  wholesale  merchants  in  restraint 

of  trade  (form),  1553. 
complaint  for  damages  for  conspiracy  to  injure  business  (form),  1550. 
complaint  for  damages  for  conspiracy  to  injure  business  of  a  butcher 

(form),  1551. 
defense  averring  right  to  regulate  the  business  of  defendants  to  prevent 

ruinous  competition  of  rates,  in  action  for  alleged  conspiracy  of 

underwriters  (form),  1553. 

Unlawfulness  of  contract,  defense  of. 

contracts  against  the  policy  of  the  law,  307. 
contracts  in  restraint  of  trade,  308. 

exception  as  to  contract  in  restraint  of  trade  in  favor  of  sale  of  good- 
will, 309. 
contract  in  restraint  of  marriage,  309. 
defense  of  unlawfulness  of  contract,  generally,  307. 
defense  of  gaming  debt  (form),  309. 

Unsoundness  of  mind.     See  Incapacity  to  contract,  defense  of. 

Usurpation  of  an  office  or  franchise.     See  Quo  warranto. 


INDEX.  2127 

[References  are  to  pages.    Vol.  I,  pages  1-1238;  Vol.  n,  pages  1239-1969.] 

Usury,  as  a  defense. 

defense  of  usury  in  making  note  (form),  1382. 
pleading  in  action  for  usury,  1293. 
usury  as  a  defense,  333. 

Vacating  judgment.     See  Judgment,  vacating  of. 

Variance. 

aider  by  verdict — cause  defectively  stated,  129. 
complaint  for  conversion  where  proof  is  of  a  sale,  129. 
construction  of  petition  after  verdict,  129. 
distinction  between  variance  and  failure  of  proof,  115. 
implied  averments — basis  of  the  rule  as  to,  129. 
material  and  immaterial  variances,  113. 

remedies  where  variance  is  immaterial,  114. 
question  of  variance — when  it  can  not  be  raised  on  appeal,  129. 
recovery  must  be  had  on  contract  alleged,  129. 
variance — when  fatal,  129. 
variance  as  to  dates  of  sales — when  immaterial,  1287. 

Vendee.     See  Vendor  and  vendee. 

Vendor  and  vendee. 

generally,  1097. 

agreement  to  sell  real  property,  1098. 
agreement  to  give  usual  covenants,  1098. 

assignee  of  right  to  money  does  not  acquire  vendor's  lien,  1105. 
averments  sufficient  to  show  execution  and  delivery  of  instrument,  1105. 
complaint — against  vendee  for  breach  of  agreement  to  purchase   (form), 
1102. 

against  purchaser  for  deficiency  on  resale  (form),  1102. 

to  enforce  vendor's  lien  against  vendee  (form),  1103. 

to  enforce  vendor's  lien  against  a  subsequent  purchaser  (form),  1104. 

of  purchaser  against  vendor  for  breach  of  agreement  to  convey  (form), 
1103. 
contract  for  sale  of  real  property,  1098. 

implied  covenants,  1099. 
proposed  vendee's  right  to  rescind,  accrual  of,  1106. 
purchaser  for  value  and  in  good  faith,  1106. 
recovery  back  of  purchase  money,  1105. 
remedies  of  vendor  on  breach  of  contract,  1105. 

Venue.     See,  also,  Change  of  venue;  Removal  of  causes  from  state  to  federal 
court, 
foreign  corporation,  venue  of  actions  against,  1821. 
guarantor — venue  of  action  against,  1820. 
law  of  the  place  governs  on  motion  for  nonsuit,  1870. 
"residence"  of  domestic  trading  corporation,  1821. 


2128  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  U,  pages  1239-1969.] 

Verdicts. 

allowing  compensatory  and  exemplary  damages  in  actions  for  seduction 

(form),  403. 
defective  statement  of  cause  cured  by  verdict,  1883. 
defect  in  verdict,  motion  in  arrest  of  judgment  for,  1884. 
judgment  for  plaintiff  on  verdict — entry  by  clerk — (form),  1876. 
judgment  by  the  court  on  verdict  for  the  plaintiff  (form),  1875. 
motion  for  a  directed  verdict,  1883. 
presumptions  after  verdict,  1883. 
verdict  (form),  1858. 

verdict  and  judgment  in  actions  for  alienation  of  affections,  403. 
verdict  in  replevin  for  the  plaintiff — in  general  (form),  1635. 
verdict  in  replevin  as  to  special  interest  and  damages  (form),  163C. 

Verification  of  pleadings, 
generally,  147. 

failure  to  deny  under  oath  genuineness  of  instrument  pleaded,  162. 
non-verified  plea  admits  genuineness  of  note  sued  upon,  162. 
omission  of  verification — effect  of,  162. 
pleading  written  instrument — when  genuineness  is  deemed  to  be  admitted, 

156. 
sufficiency  of  allegation  as  to  verification,  162. 
verification — not  made  by  party  himself — general  rule,  162. 
by  agent  (form),  158. 
by  attorney,  162. 
by  attorney  familiar  with  the  facts,  etc.,  where  the  plaintiff  is  absent 

from  the  county  where  affiant  resides  (form),  159. 
by  district  attorney  in  action  commenced  by  county,  and  where  the 
chairman  of  board  of  supervisors  of  such  county  refuses  to  verify 
(form),  159. 
by  attorney  for  non-resident  corporation  (form),  160. 
by  officer  of  corporation  (form),  160. 
by  relator  in  action  brought  by  the  state  by  its  attorney-general  (form), 

160. 
where  certain  matters  are  averred  or  denied  upon  information  or  belief 

(form),  157. 
where  all  the  facts  are  stated  positively  (form),  158. 

Vessels.    See  Steamers,  vessels,  and  boats. 

Void  marriage.     See  Annulment  of  marriage. 

Voluntary  dissolution  of  corporations.     See  Dissolution  of  corporations. 

Voluntary  payment.     See  Taxes  and  revenue,  actions  relating  to. 

Warranty.     See  Covenants,  title,  and  possession  of  real  property;  Warranty 
on  sale  of  personal  property. 


INDEX.  2129 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Warranty  on  sale  of  personal  property. 

complaint — breach  of  warranty  as  to  judgment  (form),  1241. 

warranty  of  note  (form),  1241. 

breach  of  warranty  of  quality  of  fruit-trees  (form),  1242. 

breach  of  warranty  of  fitness  for  designated  purpose  (form),  1246. 

breach  of  warranty  on  sale  of  stallion  (form),  1246. 

breach  of  warranty  on  sale  of  work  animals  (form),  1245. 

breach  of  warranty  of  title  (form),  1240. 
counterclaim  on  breach  of  warranty  (form),  1247. 
defense  of  denial  of  warranty  (form),  1247. 
denial  of  breach  of  warranty  (form),  1247. 
remedies  where  breach  of  warranty  occurs,  1248. 
warranty  on  sale  by  sample,  breach  of  (form),  1242. 

Waste. 

action  against  trustee,  753. 

actions  for  waste  and  damages,  generally,  748. 

actions  by  representatives  for  waste,  1010. 

allegation  as  to  removing  permanent  fixtures,  753. 

complaint— by  devisee  of  remainder  in  fee  against  life  tenant  (form),  752. 

by  joint  tenant  or  tenant  in  common  against  cotenant  (form),  752. 

against  dowress  (form),  751. 

for  waste  caused  by  one  who  purchased  at  execution  sale  (form),  750. 

by  ward  against  guardian  for  waste  (form),  425. 

Water-rights  and  riparian  owners. 

actions  relating  to  water-rights  and  riparian  owners — generally,  1180. 

by  trustee  of  an  express  trust  holding  legal  title  of  water-rights,  1224. 
averment — of  ownership  of  lands  (form),  1191. 

as  to  ownership  and  possession  of  lands  in  another  county  and  along 
watercourses  (form),  1199. 

that  lands  are  riparian  to  watercourses  (form),  1198. 

as  to  riparian  right  to  flow  and  use  of  stream  (form),  1186. 

as  to  adverse  and  riparian  possession  (form),  1183. 

as   to   aridity   of  climate,   and   dependance   upon   river   for   irrigation 
(form),  1184. 

as  to  regular  flow  and  annual  overflow  of  waters  through  and  over  semi- 
arid  region  (form),  1199. 

as  to  irrigation  with  subsurface  waters  (form),  1192. 

as  to  means  and  manner  of  effecting  diversion— depletion  of  waters 
(form),  1194. 

as  to  construction  of  obstructing  dams,  ditches,  etc.  (form),  1201. 

as  to  continuance  of  use  of  waters,  and  of  damages  if  deprived  of  use 
(form),  1193. 

as  to  effects  of  diversion  of  waters  (form),  1202. 

as  to  diversion  and  obstruction  of  flow  by  headgates,  dams,  etc.  (form), 
1186. 


2130  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Water-rights  and  riparian  owners  (continued). 

averment — as   to   deprivation  of  use   of  pipe-line,   and   damages    (form), 
1227. 

as  to  threatened  continuance  of  means  of  diverting  waters,  etc.  (form), 
1188. 

as  to  wrongful  diversion  of  flow,  damage,  etc.  (form),  1184. 

as  to  continuance  of  diversion  and  effect  thereof  (form),  1195. 

as  to  threatened  continuance  of  diversions,  etc.  (form),  1202. 

as  to  damages  caused  by  obstructing  natural  flow  of  water  and  conse- 
quent inundation  of  lands  (form),  1182. 

as  to  damages  for  diverting  water  used  for  power  or  other  purposes 
(form),  1180. 

as  to  parties  generally  (form),  1228. 

as  to  character  of  interest  of  parties  (form),  1230. 

as  to  parties  made  defendants  because  of  inability  to  obtain  consent  to 
join  them  as  plaintiffs  (form),  1229. 

as  to  incorporation  for  acquiring  water-rights,  etc.  (form),  1197. 

as  to  inadequacy  of  remedy  at  law,  and  prayer  (form),  1230. 
bill  of  peace  to  restrain  defendants  from  irrigating  and  improving  certain 

lands,  and  from  erecting  dams,  irrigating  ditches,  etc  (form),  1228. 
cause  of  action  for  damages  for  past  diversions  (form),  1203. 
complaint  to  restrain  diversion  of  waters  of  a  river  flowing  over  various 
riparian  lands  in  different  counties,  and  for  damages  for  past  diver- 
sions (form),  1196. 

by  riparian  owner  to  enjoin  diversion  of  waters  of  stream  and  its  tribu- 
taries in  region  of  slight  rainfall  (form),  1182. 

by  sole  plaintiff,  to  restrain  diversion  of  surface  and  percolating  waters 
(form),  1191. 

by  numerous  plaintiffs,  to  enjoin  interference  with  and  diversion  of 
waters  of  an  underground  stream  (form),  1189. 

to  quiet  title  to  alleged  prescriptive  water-right  (form),  1217. 

by  municipal  corporation  to  quiet  title  to  riparian  rights  in  waters 
(form),  637. 
continuing  trespasses  upon  water-rights,  1224. 
decree — enjoining  diversion  of  percolating  waters,  1224. 

for  plaintiff — action  by  riparian  owner  to  enjoin  diversion  of  waters 
(form),  1221. 

for  plaintiff  and  intervener — action  to  determine  water-rights,  and  to 
enjoin  diversion  of  waters  (form),  1219. 

restraining  diversion,  etc.,  of  surface  and  percolating  waters  (form), 
1222. 
defenses — (1)  denials,  (2)  ownership  of  waters  by  grant,  (3)  misjoinder  of 
causes  of  action,  (4)  misjoinder  of  parties  plaintiff,  (5)  misjoinder 
of  parties  defendant,  (6)  non-joinder  of  necessary  -parties — action 
to  enjoin  alleged  diversions  of  water  from  an  artesian  basin 
(form).  1208. 


INDEX.  2131 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Water-rights  and  riparian  owners  (continued). 

defenses — (1)   adverse  possession  as  tenants  in  common  with  plaintiffs, 
(2)   riparian  right  to  lands  of  defendant — action  to  quiet  title  to 
alleged  prescriptive  water-right  (form),  1211. 
description — of  watercourse  (form),  1183. 
of  watershed  and  supply  (form),  1193. 
of  watercourses  and  of  relation  to  lands  (form),  1197. 
of  natural  gorge  as  point  of  diversion  (form),  1194. 
diversion  of  freshet  waters,  1224. 
intervention  in  action  to  determine  water-rights,  and  to  restrain  diversion 

of  waters  by  canals,  etc.  (form),  1205. 
nature  of  right  of  a  riparian  owner,  1223. 
nature  of  action  to  restrain  trespass  upon  water-rights,  1224. 
notice  of  application  for  injunction  to  restrain  diversion  (form),  1214. 
pleading  priority  of  right,  1224. 
preliminary  injunction  restraining  diversion  of  waters  of  a  river  (form), 

1215. 
prayer — for  injunction,  etc.   (form),  1196. 

for  abatement  of  dams,  ditches,  etc.,  and  for  permanent  injunction. 

etc.  (form),  1188. 
for  damages  and  injunction  (form),  1204,  1228. 

to  enjoin  perpetually,  for  temporary  restraining  order,  and  other  relief 
(form),  1207. 
right  to  perpetual  use  classed  as  real  estate,  1223. 
rights  of  others  than  riparian  owners,  1224. 
"taking"  of  property — what  constitutes,  1223. 

Wife,  maintenance  of.     See  Maintenance  of  wife;  Property  of  husband  and 
wife,  actions  relating  to. 

Wilful  neglect.     See  Divorce  (causes  for). 

Wills.    See  Probate  contests. 

Witnesses.    See,  also,  Contempt,  proceedings  to  punish  for. 

attachment  against  a  witness  for  not  obeying  a  subpoena  (form),  1859. 

attachment  for  defaulting  (form),  1859. 

civil  subpoena  (form),  1858. 

witnesses  and  contempts — statutes  applicable  to  proceedings,  1865. 

Work  and  services, 
generally,  1264. 

action  against  representative  of  deceased  executor  for  services,  1031. 
complaint — for  work  and  services  (form),  1264. 
by  attorneys  for  services  (form),  1270. 

by  surviving  partner  of  law  firm,  to  recover  conditional  and  reasonable 

fee  for  legal  services — pleading,  also,  stated  account  (form),  1271. 

in  action  upon  individual  and  assigned  claims  for  services  (form),  1273. 


2132  INDEX. 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Work  and  services  (continued). 

complaint — by  parent  for  services  of  minor  child  (form),  1273. 

by  auctioneer,  upon  account  for  work  and  services  (form),  1267. 

by  physician,  for  services  (form),  1269. 

by  machinist  for  services  and  materials  furnished  (form),  1269. 

for  services  rendered  by  husband  and  wife  (form),  1268. 

for  work,  etc.,  comprising  different  items  (form),  1267. 

by  employee  against  employer,  for  failure  to  fulfil  contract  of  employ- 
ment (form),  1265. 

by  employer  against  employee  for  damages  caused  by  inefficient  serv- 
ices (form),  1266. 

against  employee,  for  refusal  to  serve  (form),  1266. 

to  recover  balance  upon  an  executed  contract  for  services  (form),  1265. 
defense — performance  (form),  1275. 

where  damages  exceed  alleged  value  of  services — action  upon  assigned 
claim  for  reasonable  services  of  a  physician  (form),  1274. 

to  common  count  for  reasonable  value  of  labor,  materials,  etc.,^096. 

of  work  and  services  performed  in  satisfaction  of  demand  (form),  293. 

of  special  denial,  and  accounting  and  payment  (form),  1276. 
denial  of  offer  to  serve  (form),  1276. 

Writs.    See,  also,  separate  headings, 
common-law  practice,  1900. 
definitions  of  "writ"  and  "process,"  1901. 

disobedience  by  judge  of  writs  of  supersedeas  of  higher  court,  1865. 
mandate,  petitions  for  writ,  870. 
remedy  of  party  removed  under  writ,  1901. 
restoring  to  possession  after  reversal  of  judgment,  1901. 
tenants  who  may  be  dispossessed  under  writ,  1901. 

warrant  of  attachment  to  be  issued  in  proceedings  to  punish  for  a  con- 
tempt of  court  (form),  1861. 
writ  as  summary  proceeding,  1901. 
writs— in  attachment  and  garnishment,  1694. 

in  certiorari  or  review,  855. 

in  mandamus,  877. 
writ  coram  nobis, — office  of,  1901. 
writ  of  assistance  (form),  1897. 

in  foreclosure,  1901. 

nature  of,  1901. 

operation  of,  1901. 
writs  of  execution,  and  assistance,  1888. 
writ  of  possession,  and  judgment  quieting  title  (form),  79L 
writ  of  prohibition— proceedings  for,  884. 
writ  of  restitution  upon  judgment  in  ejectment,  1901. 


INDEX.  2133 

[References  are  to  pages.     Vol.  I,  pages  1-1238;  Vol.  II,  pages  1239-1969.] 

Writs  of  error.    See,  also,  Appeals, 
in  state  courts,  generally,  1908. 
allowance  of  writ  of  error  (form),  1923. 
approval  of  bond  (form),  1925. 

assignment  of  error  on  petition  for  writ  (form),  1923. 
bond  on  a  writ  of  error  (form),  1924. 

bond  for  costs  and  damages  on  writ  of  error  in  civil  action  (form),  1920. 
justification  of  sureties  (form),  1921. 
oath  of  sureties  to  bond  on  writ  of  error  (form),  1924. 
petition  for  writ  of  error  (form),  1922. 
proceedings  for  writs  of  error  in  certain  state  courts,  1919. 
references  to  statutes  relating  to  appeals  and  writs  of  error,  1908. 
staying  proceedings— order  (form),  1921. 

supersedeas  bond  on  writ  of  error  in  civil  action  (form),  1921. 
writ  of  error  in  civil  action  (form),  1919. 

Hawaii  (statutory  form),  1909. 

Writ  of  review.    See  Certiorari. 

Writings,  inspection  of.    See  Bill  of  particulars. 

Written    contracts.     See   Contracts   generally;    Statute   of   frauds,   defense! 
based  upon. 

Wrongful  act,  death  by.    See  Death  by  wrongful  act. 

Wrongs,  defenses  to  actions  for. 
generally,  334. 
defense — justification  of  alleged  wrong  (form),  334. 

of  foreign  statute  of  limitations  in  action  for  tort  (form),  33S. 
of  justifiable  arrest  of  the  plaintiff  (form),  335. 
of  necessary  ejection  by  force  (form),  335. 
Jfury's  PI— 135. 


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